A new rule published by the Justice Department on Friday will allow the use of different methods permitted by states, including firing squads and electrocution, for federal executions.
It’s unclear whether the rule will ever actually get used but it could potentially make it easier for the Trump administration to proceed with the wave of federal executions it plans to carry out before President-elect Joe Biden takes office on Jan. 20.
The proposed rule change was first reported by ProPublica as among many regulations the Trump administration is racing to change before the president leaves office.
Five more inmates are scheduled to be executed before Biden takes office. The Justice Department hasn’t indicated it is planning on using any methods other than lethal injection, according to The New York Times. Biden opposes the death penalty and could potentially overturn the rule change.
But the change is a “symbolic” step to enable the federal government to carry out its executions, University of Texas law professor Steve Vladeck told the Times.
“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,” he said.
After a 17-year hiatus, the Trump administration in July started carrying out a wave of federal executions, despite the ongoing coronavirus pandemic. Amid legal challenges and availability issues with the three-drug formula used for federal executions, a single drug called pentobarbital has been used. But autopsy reports show the drug may torture as it kills.
Eight federal inmates have been executed this year, according to CNN. The only woman on federal death row, Lisa Montgomery, who is a mentally ill victim of sex trafficking, is scheduled to be executed eight days before Biden’s inauguration.
The Justice Department published the proposal in August and only accepted public comments for 30 days instead of the usual 60, according to ProPublica. The rule cleared White House review on Nov. 6 and will go into effect on Dec. 24.
All states that have capital punishment use lethal injection as their primary method, but some states allow for other methods that can be used if lethal injection is found to be unconstitutional or unavailable. Utah, Mississippi and Oklahoma permit firing squads. Nine states permit electrocution.
The rule, signed by Attorney General William Barr and dated Nov. 18, says “future situations may arise” where a state might need to use a method other than lethal injection. “If cases arise in which the Department is required to execute a Federal inmate according to the law of a State that uses a method other than lethal injection, the most expedient means of carrying out the execution may be to arrange for State assistance,” the rule says.
The Justice Department says it proposed the rule change in August to account for the Federal Death Penalty Act’s requirement that federal sentences be carried out how the states stipulate them.