The US justice department has created new regulations allowing for the use of more methods for federal executions, including firing squad and electrocution.
The rule, which is scheduled to be published in the federal register on Friday, comes as the administration rushes to execute five more prisoners before the end of President Donald Trump’s term. It is part of a spate of moves and rule-making processes before he leaves office.
Unlike in some of the final-hour decisions, the practical effect of the rule remains unclear. The justice department has not indicated that it plans to execute inmates by a manner other than lethal injection, which has been the only method of execution the federal government has used in decades.
Although lethal injection has come under increasing legal assault, the supreme court has already rejected recent challenges to it presented by inmates on federal death row. And president-elect Joe Biden, who can rescind the rule, has signalled his opposition to the federal death penalty.
Last week, the justice department announced that it plans to execute three more inmates on federal death row. If the administration does so, along with two other executions already scheduled, it will have put 13 prisoners to death since July, marking one of the deadliest periods in the history of federal capital punishment since at least 1927, according to data from the Federal Bureau of Prisons.
The rule, reported earlier by ProPublica, stipulates that the federal government may conduct executions 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” the law that governs implementation of the death sentence. It will go into effect 30 days after its scheduled publication on Friday, before some of the executions are set to take place.
All states that use the death penalty allow execution by lethal injection, according to the rule. Some also authorise other means. For example, Alabama allows the prisoner to elect a death by electrocution or nitrogen hypoxia (a lethal dose of gas) instead of lethal injection. A law signed by the governor of Utah in 2015 states that a firing squad shall be used to execute an inmate if substances for lethal injection are unavailable on the scheduled date.
Drug shortage
States have already struggled to obtain suitable drugs for their lethal injection protocols. Several years ago, reports of high-profile botched executions, which involved prisoners who reportedly gasped or writhed in pain, prompted new scrutiny over the death penalty. After an instance in Oklahoma, President Barack Obama directed his attorney general to review the application of the death penalty in the United States.
Federal executions carried out 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 cleared the way in June.
The rule recently finalised by the Trump administration concerns how the federal government must comply with state execution protocols. The Federal Death Penalty Act 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 initial version of the rule published in August, the justice department noted that a state might one day require executions to be conducted by a means other than lethal injection. The proposed rule said it sought to forestall challenges by prisoners to their executions because federal regulations did not authorise execution by means other than lethal injection.
Agencies are generally supposed to allot at least 60 days for public comment. The Trump administration gave only 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 that it represented a "symbolic" and "deeply practical" step by the department to carry out its five scheduled executions.
“It’s a pretty gruesome way to go out,” he said. “This is basically the attorney general doubling down on, you know, sort of making it possible to execute as many federal prisoners as he can before his tenure is over.”– New York Times