Whether FDA Has Jurisdiction over Articles Intended for Use in Lawful Executions
17
death penalty is an available punishment for dozens of federal crimes,
Congress has presupposed there would be a lawful means for carrying out
such a sentence.
From 1790 until 1937, federal law prescribed hanging as the method of
execution. Act of Apr. 30, 1790, § 33, 1 Stat. at 119; Andres v. United
States, 333 U.S. 740, 745 n.6 (1948). Congress then mandated that each
federal execution be carried out in “the manner prescribed by the laws of
the State within which the sentence is imposed,” or, if that State did not
have the death penalty, in accordance with the laws of another State
designated by the sentencing court. Act of June 19, 1937, ch. 367, 50 Stat.
304, 304 (repealed 1984). At the time, nearly 30 States were using cya-
nide gas or the electric chair, but the States adopted at least six different
methods of execution between then and the early 1980s. See Deborah A.
Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L.
Rev. 319, 439–64 (1997). After that provision was repealed in 1984,
federal regulations required the government to propose to the sentencing
court that any death sentence be carried out by lethal injection. 28 C.F.R.
§ 26.2(a)(2). Unless the court ordered otherwise, they required the Direc-
tor of the Federal Bureau of Prisons to “determine[]” which “substance or
substances” to use. Id. § 26.3(a)(4).
Today, capital sentences imposed under the Federal Death Penalty Act
of 1994 are again required to be implemented “in the manner prescribed
by” either (i) “the law of the State in which the sentence is imposed,” or
(ii) if that State does not have the death penalty, the law of another State
designated by the sentencing court. 18 U.S.C. § 3596(a). The Army’s
executions are by “intravenous administration of a lethal substance, or
substances, in a quantity sufficient to cause death.” Army Regulation 190-
55, U.S. Army Corrections System: Procedures for Military Executions
§ 3-1, -2 (Jan. 17, 2006).
135–40 (articles 85, 90, 94, 99, 100, 101, 102, 104, 106, 110, 113, 118, and 120, estab-
lishing 13 military offenses punishable by death); Organized Crime Control Act of 1970,
Pub. L. No. 91-452, sec. 1102, § 844(d), 84 Stat. 922, 957 (authorizing capital punishment
if death results from the use of explosives to maliciously destroy government property);
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7001(a), 102 Stat. 4181, 4387–88
(codified at 21 U.S.C. § 848(e)) (authorizing capital punishment for intentional killing
while engaging in criminal enterprises or drug felonies); Federal Death Penalty Act of
1994, Pub. L. No. 103-322, §§ 60001–60026, 108 Stat. 1796, 1959–82 (codifying proce-
dures for federal death sentences and authorizing capital punishment for 60 offenses
under 13 existing and 28 new federal statutes).