Legal Sidebari
Federal Capital Punishment: Recent
Developments
Updated November 22, 2019
Update: After this Sidebar was published, two more of the federal inmates scheduled for execution joined
the litigation challenging the 2019 execution protocol and filed motions seeking preliminary orders
barring their executions from going forward. On November 20, 2019, the district court granted the
motions, concluding that the 2019 execution protocol’s “uniform procedure approach very likely exceeds
the authority provided by” Congress because the Federal Death Penalty Act specifies that federal
executions must be implemented in the manner prescribed by the state of conviction. As a result of the
court’s order, it appears that the executions of the four inmates who filed motions will not take place as
scheduled, though the order only relates to requests for preliminary relief and the Department of Justice
has filed a notice of appeal. The fifth inmate’s execution has also been stayed by a federal appellate court
so that an unrelated issue in his case can be reviewed.
The original post from October 23, 2019, is below.
In July 2019, Attorney General William Barr instructed the Federal Bureau of Prisons (BOP) to take
action to resume executions of inmates sentenced to death for violating federal law, ending an effective
years-long moratorium. At the Attorney General’s direction, BOP’s then-Acting Director scheduled five
federal inmates for execution in December 2019 and January 2020. A new addendum to BOP’s execution
protocol will govern the executions. That addendum provides for injection of a single drug, pentobarbital
sodium, as the lethal agent. The BOP protocol previously called for application of a three-drug sequence,
but the scarcity of the drugs involved and a review initiated by the previous Administration (as well as
ongoing legal challenges) forestalled federal executions under the three-drug protocol after 2003.
The resumption of federal executions could affect extant litigation challenging BOP’s execution protocol.
In particular, at least one of the inmates scheduled to be executed previously sued the federal government,
alleging that the execution protocol calling for three-drug lethal injection violated the Constitution and
statutory requirements for agency action under the Administrative Procedure Act (APA). That lawsuit has
been on hold since 2013, but BOP’s recent actions have prompted a flurry of activity in the suit and
related challenges to the federal execution protocol. Congress has also responded: in August, a
Subcommittee of the House Oversight Committee sent a letter to the Acting Director of BOP and the
Attorney General seeking documents and information regarding the decision to resume executions, and
bills have been introduced in both the House and Senate that would prohibit imposition of the death
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penalty for any violation of federal law. In light of these developments, this Sidebar provides a brief
overview of the federal death penalty and some of the legal issues arising from BOP’s recent actions as
they relate to Congress.
Overview of Federal Capital Punishment
The death penalty is contemplated in the text of the Constitution and has been available as a punishment
for certain violations of federal law for most of the nation’s history. However, several Supreme Court
decisions from the 1970s recognized that the Eighth Amendment’s prohibition on cruel and unusual
punishment places important limitations on imposition of the death penalty, and aspects of those cases are
now reflected in federal law. First, in a splintered decision in Furman v. Georgia, a plurality of the Court
concluded that the death penalty was being administered in an arbitrary manner. Furman resulted in a
moratorium on the death penalty for several years, until a series of cases—headlined by Gregg v.
Georgia—allowed the death penalty to be imposed under limited circumstances. In Gregg, the Court
clarified that the death penalty is not unconstitutional in all of its applications, but a plurality of the Court
concluded that any punishment cannot “involve the unnecessary and wanton infliction of pain” or “be
grossly out of proportion to the severity of the crime.” The Gregg plurality also recognized that the death
penalty cannot “be imposed under sentencing procedures that create[] a substantial risk that it [will] be
inflicted in an arbitrary and capricious manner,” meaning that “where discretion is afforded a sentencing
body” to impose the death penalty, “that discretion must be suitably directed and limited so as to
minimize [said] risk . . . .” Applying these principles, the Court in Gregg ultimately upheld imposition of
the death penalty for murder under state procedures that bifurcated the guilt/innocence and sentencing
phases of trials and guided discretion at sentencing by requiring consideration of aggravating and
mitigating circumstances particular to each capital defendant. In a companion case decided the same day,
Woodson v. North Carolina, the same plurality of the Court from Gregg emphasized that mandatory
imposition of the death penalty is unconstitutional, as a capital punishment scheme must “allow the
particularized consideration of relevant aspects of the character and record of each convicted defendant
before imposition upon him of a sentence of death.” Following Gregg and Woodson, states began enacting
death penalty laws employing the “guided discretion” procedures approved of in Gregg, and 29 states
currently authorize the imposition of the death penalty.
In the wake of Gregg and the end of the moratorium on the death penalty, the Court has addressed several
subsidiary questions, including when death is “grossly out of proportion to the severity of the crime” (i.e.,
what kinds of crimes and offenders may constitutionally be punished by death) and when the carrying out
of the death penalty would “involve the unnecessary and wanton infliction of pain” (i.e., what methods of
execution are constitutionally permissible). With respect to the former question, whether imposition of the
death penalty for a particular crime is cruel and unusual is measured against “the evolving standards of
decency that mark the progress of a maturing society.” The Court has said that death is reserved for
“offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability
makes them ‘the most deserving of execution.’” As a result, juvenile offenders and the intellectually
disabled may not constitutionally be sentenced to death because of their “lesser culpability.” Additionally,
at least as it relates to “crimes against individuals,” the Court has said that “the death penalty should not
be expanded to instances where the victim’s life was not taken.”
As to what methods of execution are constitutionally permissible, “the Eighth Amendment does not
guarantee a prisoner a painless death.” Rather, the Constitution prohibits only those “long disused
(unusual) forms of punishment that intensif[y] the sentence of death with a (cruel) superaddition of terror,
pain, or disgrace.” As such, torturous methods of execution such as disembowelment, public dissection,
and burning alive are forbidden, but the Supreme Court has upheld sentences of death by firing squad and
the electric chair, among other methods. In recent years, the Court has considered, and rejected,
challenges to particular procedures for administration of lethal injection, the most common method of
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execution in the United States. According to the Court’s most recent pronouncement on the issue, a
prisoner challenging a chosen method of execution “must show a feasible and readily implemented
alternative method of execution that would significantly reduce a substantial risk of severe pain” and that
the governmental authority “has refused to adopt without a legitimate penological reason.” In other
words, the Eighth Amendment “does not come into play unless the risk of pain associated with the
[challenged] method is ‘substantial when compared to a known and available alternative.’” Based on
these standards, which appear quite difficult to meet, the Court has upheld the use of three-drug protocols
and the use of a single-drug administration of pentobarbital to execute a man who claimed that his unique
medical condition would render that method of execution extremely painful.
Congress has established detailed procedures for federal death-penalty cases in the Federal Death Penalty
Act (FDPA). Among other things, and in line with Gregg, the statute provides for bifurcated
consideration, where the sentencing body first determines a defendant’s guilt or innocence and then, if the
defendant is convicted of a death-eligible federal offense and the government has provided notice of its
intent to seek the death penalty, considers whether the death penalty should be imposed based on the
sentencing body’s assessment of aggravating and mitigating factors specific to the defendant and his or
her crime. In line with Woodson, imposition of a sentence of death is never mandatory. A jury verdict
imposing the death penalty must also be unanimous. Federal crimes for which the death penalty is
authorized are limited to espionage, treason, exceptionally large-scale drug kingpin offenses, and
homicides in particular jurisdictional contexts. Given the Supreme Court’s indication that the death
penalty is suspect in cases where the victim’s life has not been taken, the extent to which the few death-
eligible federal offenses that do not involve homicide comport with the Court’s interpretation of the
Eighth Amendment is uncertain. Since 1976, 3 federal inmates have been executed, and 61 federal
prisoners remain on death row as of April 1, 2019. For more information on federal capital punishment,
see this CRS report.
Ongoing Litigation and Implications
As noted above, one of the federal inmates scheduled for execution, Alfred Bourgeois, and several other
federal offenders sentenced to death previously filed lawsuits challenging BOP’s three-drug execution
protocol. At least one other inmate scheduled to be executed, Daniel Lewis Lee, has also sued following
the announcement of BOP’s new protocol. The cases have been consolidated in the federal district court
for the District of Columbia, and both Lee and Bourgeois have sought preliminary orders barring their
executions from taking place in December and January. Bourgeois and Lee assert, among other things,
that the new protocol and the previous three-drug protocol violate the Eighth Amendment and the
inmates’ due process rights based on the lack of information and safeguards to ensure the provenance and
effectiveness of the drugs that will be used in their executions.
The inmates also raise challenges to the protocols under the Administrative Procedure Act (APA). Among
other things, the APA requires a court to set aside agency action that is “arbitrary and capricious” or in
excess of statutory authority. Bourgeois and Lee argue that the protocols exceed statutory authority
because Congress, in the FDPA, specified that a sentence of death must be implemented “in the manner
prescribed by the law of the State in which the sentence is imposed” or, if there is no such law, the law of
another state designated by the court. As such, the inmates claim, neither the FDPA nor any other
statutory authority permits the Department of Justice (DOJ) to promulgate the regulation establishing
lethal injection as the default method for federal executions, nor is BOP authorized to adopt a protocol
that implements that regulation. Bourgeois and Lee additionally assert that the protocols violate the APA
because DOJ and BOP failed to go through the ordinary public rulemaking process required by statute or
to provide a reasoned explanation for their contents, rendering the actions of adopting the protocols
“arbitrary and capricious” in violation of the APA.
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DOJ has responded to the claims regarding the new protocol in part by arguing that (1) the Supreme Court
and lower courts across the country have upheld the use of pentobarbital in executions under the Eighth
Amendment, and any claim regarding drug quality or maladministration is speculative; (2) Congress has
generally authorized the Attorney General to prescribe regulations that govern the carrying out of DOJ
functions like executions; (3) Lee’s execution, at least, is being carried out “in the manner prescribed” by
state law because Arkansas (the state where Lee was convicted) prescribes lethal injection as the sole
method of execution; and (4) the execution protocol is a mere “procedural rule” or policy statement that is
not required to go through the public rulemaking process prescribed by the APA.
As of this writing, the court in the ongoing litigation has not ruled on the merits of the inmates’ claims or
their requests for orders barring their executions from taking place as scheduled. However, at least one
commentator has argued that the APA claims are “hard to dismiss out of hand” and could forestall the
executions as a result.
Considerations for Congress
The procedures for imposing and carrying out the death penalty for violating federal law are based in
statute. Thus, Congress may amend those procedures (within the bounds established by the Supreme
Court), including by requiring use of the three-drug protocol previously adopted by BOP. Given the
difficulty states and the federal government have encountered in procuring at least one of those drugs—
sodium thiopental—however, a statutory requirement that the three-drug combination should be used
could affect DOJ’s ability to carry out federal executions going forward.
Alternatively, Congress could codify the one-drug application of pentobarbital that BOP has recently
implemented, although that drug’s ready availability is also in question and the House Oversight
Subcommittee’s recent letter to the Acting Director of BOP raised concerns about safety and sourcing. As
another option, Congress might theoretically require that some other drug or method of execution be used,
though any alternative method would almost certainly be challenged under the Eighth Amendment.
Congress could also clarify DOJ’s and BOP’s regulatory authority to implement the FDPA through an
execution protocol, which could obviate some of the APA issues raised in the ongoing litigation discussed
above. In fact, Congress has considered such legislation in the past. Finally, Congress is free to eliminate
the death penalty as a punishment for some or all federal crimes, as recent proposals would do. Should
Congress instead seek to expand the availability of the federal death penalty, it would need to ensure that
such an expansion comports with the Eighth Amendment by limiting the punishment to “offenders who
commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the
most deserving of execution.’”
Author Information
Michael A. Foster
Legislative Attorney
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