In 2019, the Department of Justice announced that it was ready to restart federal executions and issued a press release outlining how they would proceed. The Press Release dictated that the federal inmates would be injected using a one-drug protocol comprised of the barbiturate pentobarbital. This was a source of controversy as the new federal protocol was not the same protocol used in several states and the federal statute governing executions at the federal level states that federal executions be conducted “in the same manner” as the state in which the execution occurs. This discrepancy sparked litigation in which courts had to determine if the Federal Government was required to use the same method as the state in which the execution occurs, or if the Federal Government was, instead, required to use a particular state’s protocol, which may or may not be in line with what the DOJ promulgated. Or, put simply, what does the word “manner” mean? This Comment reviews the arguments and the outcome of the litigation and offers a substantive analysis of their strengths and weaknesses, as well as considers what insight the abruptly ending litigation provides into the emergence of reverse federalism in the death penalty context.
Federal Execution Protocols: Lessons Learned in Grammar and Reverse Federalism,
Rich. Pub. Int. L. Rev.
Available at: https://scholarship.richmond.edu/pilr/vol24/iss2/8