The Department of Justice has created new regulations that allow a variety of methods to be used in federal executions, including shooting and electric shock.
The new rule, scheduled to be published in the federal register on Friday, comes when the administration rushes to execute five more prisoners before President Trump expires. It is part of the movements and rule-making processes before he leaves office.
Contrary to last-hour decisions, the practical impact of the rule remains unclear. The Department of Justice has not indicated that it plans to execute detainees other than by lethal injection, which is the only method of execution used by the federal government for decades. Although the lethal injection is facing an increasing legal attack, the Supreme Court has already rejected the recent challenges faced by federal prisoners sentenced to death. President-elect Joseph R. Biden Jr., who may denounce the rule, has indicated his opposition to the federal death penalty.
Last week, the Justice Department announced plans to execute three more detainees in a federal death sentence. If the administration does so, along with two other executions already planned, 13 prisoners have died since July, one of the deadliest periods in the history of the federal death penalty since at least 1927, according to the federal office. prisons.
A 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 designated by a court in accordance with them.” the law governing the execution of the death penalty. It will take effect 30 days after its scheduled publication on Friday, before some executions are carried out.
Every state that uses the death penalty, as a rule, allows execution by lethal injection. Some allow other devices as well. For example, Alabama allows a prisoner to choose death by electric shock or nitrogen hypoxia (a lethal dose of gas) instead of a lethal injection. The law, signed by the Governor of Utah in 2015, states that a group of shooters should be used to execute detainees if materials suitable for lethal injection are not available at the scheduled time.
States have already struggled to obtain the right drugs for their lethal injection protocol. A few years ago, reports of high-profile executions involving prisoners who allegedly gasped or writhed in pain launched a new investigation into the death penalty. Following the Oklahoma case, President Barack Obama instructed his attorney general to review the use of the death penalty in the United States.
Federal executions since then, which in practice took a break of almost two decades, have been carried out exclusively by lethal injection. The government’s protocol uses a single chemical, pentobarbital, to which the Supreme Court paved the way in June.
The rule recently finalized by the Trump government concerns how the federal government must comply with state enforcement protocols. The Federal Death Penalty Act provides that executions “shall be carried out in accordance with the law of the State in which the sentence is imposed.”
When it submitted the first version of the rule, published in August, the Department of Justice noted that a state could one day require executions to be carried out in a manner other than a lethal injection. Under the proposed rule, it would prevent potential challenges in the execution of prisoners, as federal regulations did not explicitly allow execution outside of lethal injection.
Agencies should generally set aside at least 60 days for public comment. The Trump government only gave 30 days to the proposed rule.
Steve Vladeck, a law professor at the University of Texas, noted that Mr. Biden could reverse the rule, but said it was a “symbolic” and “deeply practical” move by the department to carry out his five scheduled executions.
“It’s a pretty awful way to get out,” he said. “It’s basically a duplication of the Attorney General, you know, about allowing as many federal prisoners as possible to be executed before his term expires.”
He also highlighted recent legal obstacles faced by the Department of Justice in death penalty lawsuits. Before the execution of the federal detainee, Orlando Cordia Hall, last week, the U.S. District Court for Appeals in Colombia ruled that the Department’s lethal injection protocol could violate federal food, drug, and cosmetics law. This law prescribes the prescription for the execution drug, pentobarbital. But the court still refused to issue an order for the case.
In order to renew the death penalty under the Trump government, the Department of Justice refused to use the three-drug cocktail once used and introduced a protocol using a single drug, pentobarbital.
According to the Justice Department’s announcement of the five planned executions, four prisoners will be executed by lethal injection at the Federal Penitentiary in Terre Haute, India. The ministry did not specify how one of the prisoners, Dustin John Higgs, who had been convicted of kidnapping, was executed. and killed three women. An official from the Ministry of Justice who spoke about anonymity also did not comment on the manner of execution.
Ruth Friedman, director of the Federal Capital Habeas Project, who represented the first man executed by the Trump administration, called the rule “power arrogance”. He criticized the ministry’s decision to end judicial oversight. The rule abolished the requirement for a government attorney to present to the court, among other things, the date and place of enforcement, part of a provision that the department considers redundant.
Mrs. Friedman also said that the administration’s intention to execute the prisoners in such a short time before a new administration that opposed the death penalty was far more worrying than the rule.
An official at the Department of Justice defended the decision, saying the regulation was intended to bring federal judgments into line with the law.
Robert Dunham, executive director of the Death Penalty Information Center, expected the new rule to be more likely to result in fewer and less complicated legal challenges to executions, but this will quickly become irrelevant during an administration that does not seek to execute detainees.
“It tells more about how much the administration wants to kill prisoners than about the real need for repairs,” he said.