AP Photo/Michael Conroy
- The Trump administration is rushing to make a number of federal regulatory changes before President-elect Joe Biden takes office on January 20, ProPublica reported on Wednesday.
- One of those changes, proposed by the Department of Justice, would allow some federal death-row inmates to be executed by means other than lethal injection. Many states allow for electrocution and the firing squad if lethal injection is not available or if another method is preferred by the prisoner.
- Eight federal death-row inmates have been executed since the DOJ resumed federal executions in July 2020, with five more federal executions scheduled during Trump’s lame-duck period.
- As ProPublica noted, the rule change likely won’t affect any executions, given that the remaining scheduled executions are set to be conducted via lethal injection before Biden, who opposes the use of the death penalty, begins his presidency.
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The Trump administration is rushing to finalize a number of regulatory changes before President Donald Trump leaves office next month, including one that could reauthorize the use of firing squads and electrocutions in federal executions, ProPublica reports.
A proposed rule change entered by the Department of Justice into the Federal Register on August 5 would alter the method of execution of death-row prisoners.
As the proposal notes, the default method for federal executions is lethal injection, except if a judge explicitly orders otherwise. But many states with the death penalty permit executions to be carried out by other means, including by electrocution, a firing squad, or nitrogen hypoxia. Tennessee, for example, executed a death-row prisoner with electrocution in December 2019.
The amended rule would essentially allow federal executions to be conducted using methods other than lethal injections in states that allow for other means of putting prisoners to death.
While lethal injection was initially presented as a more humane and less violent method of execution than the electric chair or a firing squad, certain lethal injection drugs or problems with administering them have led to complications and some botched injections, causing painful deaths for inmates.
The proposed rule change document notes that "death by firing squad and death by electrocution do not violate the Eighth Amendment's prohibition on cruel and unusual punishment" under the prevailing Supreme Court precedent. It also cited Bucklew v. Precythe and Glossip v. Gross, cases in which death-row inmates challenged states' use of lethal injection as violating the Eighth Amendment, but were unsuccessful.
The proposed rule, according to the DOJ, "ensures that the Department is authorized to use the widest range of humane manners of execution permitted by law."
But, as ProPublica noted, the change may never actually change any actual executions. All the remaining federal executions scheduled before President-elect Joe Biden takes office on January 20 are planned to be conducted via lethal injection. Biden opposes the use of the death penalty and has indicated that his administration will not seek executions of federal death-row prisoners.
So far, eight federal death-row prisoners have been executed under the Trump administration since the DOJ, which oversees the Federal Bureau of Prisons, reinstated federal executions for death-row inmates in July 2019.
In July 2020, Daniel Lewis Lee, convicted of murdering an Arkansas family in 1996, became the first federal death-row inmate executed in 17 years, and most recently, Orlando Hall was executed on November 20 after receiving a death penalty sentence for the 1994 kidnapping, rape, and murder of a Texas teenager.
Five other inmates — Lisa Montgomery, Alfred Bourgeois, Brandon Bernard, Corey Johnson, and Dustin Higgins — are set to be executed between now and January 20. Montgomery will be the first female federal inmate to be executed in over 60 years, according to the Death Penalty Information Center.
The Trump administration carrying out multiple federal executions during a transition and lame-duck period is highly unusual and unprecedented, the Center said. It found that the Trump administration is the first to execute a death row inmate during a presidential transition period since Grover Cleveland's outgoing administration in 1889.
In addition to the federal government, 28 states currently employ the death penalty while 22 states have legislatively abolished or issued moratoria on its use, per the Center.
According to ProPublica, the Trump administration is also aiming to make consequential regulatory changes in other areas of immigration, environmental policy, energy standards and water use, and the regulation of major food plants.