Department of Justice Issues Lame-Duck Regulations to Broaden the Range of Available Federal Execution Methods

The range of meth­ods avail­able to the fed­er­al gov­ern­ment to car­ry out exe­cu­tions could be expand­ed under a new Department of Justice reg­u­la­tion pub­lished on November 27, 2020. 

The reg­u­la­tion, one of numer­ous last-minute changes in fed­er­al prac­tices adopt­ed in the lame-duck peri­od of the Trump Administration, per­mits the fed­er­al gov­ern­ment to per­form exe­cu­tions using any form of 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 fed­er­al death penal­ty statutes. The three-dozen new fed­er­al reg­u­la­tions encum­ber the incom­ing Biden admin­is­tra­tions with pol­i­cy changes affect­ing such areas as nuclear pro­lif­er­a­tion, inter­na­tion­al trade, immi­gra­tion, work­er safe­ty, pol­lu­tion, and oil drilling in the Arctic. 

The new rule dimin­ish­es trans­paren­cy into the Justice Department’s process of car­ry­ing out of exe­cu­tions and elim­i­nates a pre­vi­ous fed­er­al reg­u­la­tion requir­ing court over­sight of the imple­men­ta­tion of a death sen­tence, includ­ing the set­ting of an exe­cu­tion date. The rule does not expand fed­er­al pow­er regard­ing meth­ods of exe­cu­tion, but for­mal­izes through reg­u­la­tion the hold­ing of an April 2020 fed­er­al appeals court deci­sion requir­ing the fed­er­al gov­ern­ment to fol­low ​“those exe­cu­tion pro­ce­dures enact­ed or pro­mul­gat­ed by states as part of their bind­ing law.” In the­o­ry, it could allow the fed­er­al gov­ern­ment to con­duct exe­cu­tions by elec­tro­cu­tion, lethal gas, or fir­ing squad, though the use of any of those meth­ods with­out the con­sent of the death-row pris­on­er would be high­ly unlike­ly as a practical matter.

The rule goes into effect 30 days after pub­li­ca­tion, rather than the cus­tom­ary 60 days, mean­ing it could apply to the three fed­er­al exe­cu­tions cur­rent­ly sched­uled for January 2021, but not to the two sched­uled for December 10 and 11, 2020. Announcements for the five pend­ing fed­er­al exe­cu­tions spec­i­fied lethal injec­tion as the method of exe­cu­tion for four of the pris­on­ers but did not spec­i­fy the intend­ed method for the sched­uled January 15, 2021 exe­cu­tion of Dustin Higgs. Higgs was sen­tenced to death for an offense com­mit­ted in Maryland, which does not have the death penalty. 

The new exe­cu­tion pro­ce­dures will like­ly be ren­dered moot under the admin­is­tra­tion of President-elect Joe Biden, who said dur­ing the cam­paign that he oppos­es cap­i­tal pun­ish­ment and will work to end the fed­er­al death penal­ty. A tran­si­tion team spokesper­son reit­er­at­ed the President-elect’s oppo­si­tion to the death penalty. 

Though it is unclear whether the reg­u­la­tion will have any impact on the pend­ing fed­er­al exe­cu­tions, experts described it as a sym­bol of the Trump administration’s death penal­ty prac­tices. Steve Vladeck, a University of Texas law pro­fes­sor, said, ​“It’s a pret­ty grue­some way to go out. This is basi­cal­ly the attor­ney gen­er­al dou­bling down on … mak­ing it pos­si­ble to exe­cute as many fed­er­al pris­on­ers as he can before his tenure is over.” DPIC Executive Director Robert Dunham con­curred, say­ing, ​“It tells us more about how much the admin­is­tra­tion wants to kill pris­on­ers than it does about any real correctional need.” 

Ruth Friedman, the direc­tor of the Federal Capital Habeas Project, called the rule a ​“grand arro­ga­tion of pow­er.” She not­ed that it reduced judi­cial over­sight by remov­ing a require­ment that the gov­ern­ment for­mal­ly noti­fy the court of the date and place of the exe­cu­tion. The Department of Justice, which has been sharply crit­i­cized for fail­ing to pro­vide legal­ly required notice in sev­er­al of the exe­cu­tions, called that pro­vi­sion a redundant requirement. 

The reg­u­la­tion allows the fed­er­al gov­ern­ment to car­ry out exe­cu­tions in the same man­ner as the state in which the offense was com­mit­ted. No one cur­rent­ly on fed­er­al death row com­mit­ted the offense in a state that uses the fir­ing squad to exe­cute pris­on­ers. Only three states — Mississippi, Oklahoma, and Utah — per­mit exe­cu­tion by fir­ing squad, and only then as a back­up method of exe­cu­tion. Of those, only Oklahoma has pris­on­ers on fed­er­al death row, but Oklahoma autho­rizes fir­ing squad only if lethal injec­tion, nitro­gen hypox­ia, and elec­tro­cu­tion are unavail­able or have been declared uncon­sti­tu­tion­al. Lethal gas exe­cu­tions are sim­i­lar­ly unlike­ly, as all 7 states that autho­rize nitro­gen hypox­ia or oth­er lethal gas as a back-up method of exe­cu­tion either have no one on fed­er­al death row or no pro­to­col in place to car­ry out a lethal-gas exe­cu­tion. A fed­er­al exe­cu­tion by elec­tric chair is some­what more pos­si­ble: 17 pris­on­ers are on fed­er­al death row for offens­es com­mit­ted in states in which elec­tro­cu­tion is a back-up exe­cu­tion method, but those states require that lethal drugs are unavail­able and/​or that the pris­on­er des­ig­nate the elec­tric chair as the means of execution. 

A Justice Department offi­cial told the Washington Post, ​“the fed­er­al gov­ern­ment will nev­er exe­cute an inmate by fir­ing squad or elec­tro­cu­tion unless the rel­e­vant state has itself autho­rized that method of execution.” 

[UPDATED ON DECEMBER 2 TO CLARIFY THE IMPACT OF THE NEW RULE ON EXECUTION TRANSPARENCY .]