Bloomberg Law
Nov. 26, 2019, 2:02 PM

INSIGHT: As First Federal Execution in 16 Years Nears, Will the Government Follow the Law?

John  Wonderlich
John Wonderlich
Sunlight Foundation

The federal government recently signaled its intention to resume executions following a 16-year hiatus by simultaneously announcing its new lethal injection procedure and scheduling five execution dates, with the first to take place in early December.

Unfortunately, the federal government unveiled its new execution procedures without going through the required rulemaking process that allows for public scrutiny and accountability. It is unacceptable that a new Bureau of Prisons process for execution sidesteps basic public protections and transparency requirements.

On November 20, Judge Tanya Chutkan, of the U.S. District Court for the District of Columbia, put the brakes on the government’s execution plans. Chutkan’s injunction order recognizes that the government’s execution plans violate the law. Yet the government has already filed an appeal.

The reviewing courts should uphold the injunction, ensuring that the government does not “short-circuit” the legal process. As Chutkan wrote, “the public interest is not served by executing individuals before they have had the opportunity to avail themselves of legitimate procedures to challenge the legality of their executions.”

Moreover, it is essential that the government’s new procedure follow the rulemaking process of the Administrative Procedure Act (APA) before any execution may proceed.

Public Has Right to Know and Comment

While there are significant and important doubts and disagreements about our country’s continued embrace of capital punishment, it’s certainly the case that the power of the death penalty should only be administered within the bounds of our accountability laws—with all the seriousness and care this responsibility demands.

Lethal injection is a complex undertaking, and getting it right requires due diligence. Over the last decade, we have seen too many botched executions across the country. Execution drugs have failed to work as intended, leaving condemned prisoners alive and struggling for as long as two hours. Executioners have failed to set functioning IVs, injecting drugs into the prisoner’s flesh and potentially inflicting grievous pain. Some attempted executions, including one in Alabama in 2018, have been so mishandled and gone so wrong that the execution team had to abandon the effort altogether.

Given that the federal government has had nearly a decade to design its new execution protocol, and the problematic executions we all have seen result from secretive and experimental procedures in the states, there is no justification for depriving the public of its right to know and to comment here.

How our criminal laws will operate should not be determined in secret. In some instances where the states acted in secret when developing execution procedures and sourcing execution drugs, it was later revealed that state officials misrepresented the drugs and dosages they were employing. Secrecy surrounding executions, misrepresentations about lethal injection procedures, and maladministration of them have led to complicated, protracted litigation in a number of states.

This secrecy can and should be avoided in the federal system. With few exceptions, when a federal agency creates a regulation that operates with the force of law, that regulation must comply with the requirements of the APA. The APA’s rulemaking process exists to ensure transparency, a hallmark of good government, and establishes checks and balances by preventing rules that overreach or violate the law. Without the APA, agencies could create rules and regulations in critical areas without the requisite accountability or oversight.

Confidence in the propriety of the execution procedures is especially crucial for the credibility of the government. Careful adherence to the APA rulemaking process can help instill such confidence, and help ground our ethical debate about justice in the kind of rules-based processes in which constructive public debate is possible.

New Bureau of Prisons Procedure Must Follow the APA

The Bureau of Prisons’ new execution procedure is precisely the type of regulation that the APA was established to address. Through public notice and the opportunity for comment, the government should disclose relevant information about the drugs to be used, including their provenance, quality, and efficacy, and how the Bureau of Prisons will ensure proper storage, preparation, and administration of the drugs.

Members of the public, including those with expertise in these issues, should have an opportunity to review and comment on this information, a process that often identifies potential problematic aspects and available solutions before disastrous outcomes occur. The APA process also can include judicial review of the rulemaking process, which provides further assurance that the resulting procedure is rational, reasonable and legal.

The burden to prove that the BOP’s new execution procedure is a valid regulation is on the government. It has been many years since the BOP has had an official lethal injection protocol, much less carried out an execution.

Adhering to the APA rulemaking process is the best way for the government to ensure the necessary oversight for the most serious punishment a government can mete out, and demanding such a process is the least we should do as citizens in a country that embraces such powers.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

John Wonderlich is executive director of the Sunlight Foundation, a national, nonpartisan, nonprofit organization that seeks to make our government accountable and transparent for all. Wonderlich is one of the nation’s foremost advocates for open government and is an authority on transparency policy, from legislation and accountability in Congress to ethics and information policy in the executive branch.

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