00-19973. Rules Governing Petitions for Executive Clemency: Capital Cases

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule supplements the existing regulations on executive clemency to provide specific procedures to be used in seeking clemency by persons sentenced to death by a United States District Court for an offense against the United States. This rule sets forth a deadline for filing a clemency request in a capital case and the general procedures the Department will follow in processing the request. These procedures also provide an opportunity for defendants' counsel and victims' families each to make an oral presentation to the Pardon Attorney, if they wish to do so.

DATES:

This rule is effective August 2, 2000.

FOR FURTHER INFORMATION CONTACT:

Susan M. Kuzma, Deputy Pardon Attorney, U.S. Department of Justice, Washington, DC 20530, telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

The current clemency regulations, set forth in 28 CFR 1.1 to 1.10, do not prescribe procedures uniquely applicable to capital cases. In order to provide clear notice to capital defendants, their attorneys, and the public of the procedures by which requests for reprieve or commutation of a death sentence imposed by a United States District Court will be handled, the Department of Justice, with the President's approval, now promulgates specific procedures to be followed in capital cases. These procedures are intended to supplement the already existing clemency procedures for non-capital cases. As is true of the existing clemency regulations, the procedures for capital cases are advisory only, do not bind the President, and confer no rights on petitioners for clemency or any other person.

Section-by-Section Discussion

Section 1.10 Procedures Applicable to Prisoners Under a Sentence of Death Imposed by a United States District Court

Paragraph (a) of the new regulation provides that clemency in the form of reprieve or commutation of a death sentence imposed by a United States District Court shall be requested by the person under the sentence of death or by the person's attorney acting with the person's written and signed authorization.

Paragraph (b) addresses issues related to the timing of a clemency petition. The rule provides for a petitioner to exhaust the direct appeal and first petition under 28 U.S.C. 2255 before seeking executive clemency, and to file a petition for commutation of sentence no later than 30 days after receiving notice from the Bureau of Prisons of the scheduled date of execution. It further provides that any papers in support of the clemency petition should be filed no later than 15 days after the petition is filed, and may be excluded from consideration if not filed within that time.

Because clemency is a remedy of last resort, a capital defendant should file his clemency petition only after the predictably available judicial proceedings concerning the case (the appeal of the conviction and sentence and the first petition under 28 U.S.C. 2255) are terminated. At the same time, because of the possible difficulty and complexity of determining whether further judicial avenues of relief (such as a successive petition under 28 U.S.C. 2255) are legally possible, the setting of an execution date should proceed once the generally available remedies have been pursued. Accordingly, once an execution date has been set (which, in the case of an execution date set by the Bureau of Prisons, will normally occur no later than 60 days after the termination of proceedings on the defendant's first section 2255 petition, and which will normally provide at least 120 days' notice of the date of execution), the defendant may file a request for reprieve or commutation of sentence and has up to 30 days to request commutation of sentence. The deadlines for filing the commutation petition and supplemental papers are intended to preserve an appropriate amount of time to process and consider a clemency request.

Paragraph (c) formalizes in capital cases a practice of allowing an oral presentation of reasonable duration to be made to the Office of the Pardon Attorney by both the petitioner's counsel and the family of any victim of a petitioner's capital offense.

Paragraph (d) provides that clemency proceedings may be suspended if a court orders a stay of execution for any reason other than to allow completion of the clemency proceeding. In order to facilitate a prompt and final resolution of whether a defendant's death sentence will be carried out, this rule allows a defendant, after the first petition under section 2255 is terminated, to pursue clemency while litigation is pending, but provides for the suspension of the clemency proceedings when a court-ordered stay of execution is entered for a reason other than to permit the clemency proceedings to be completed. The option of suspending the clemency proceedings is consistent with the view of clemency as a remedy of last resort and helps to ensure that in making a decision about clemency, the President acts only upon a current and complete legal and factual record.

Paragraph (e) provides that only one request for commutation of a death sentence will be processed to completion, absent a clear showing of exceptional circumstances. The limitation is designed to encourage the petitioner to raise all claims in a single request and to contribute to a swifter resolution of the case. However, if changed circumstances make it impossible to have raised all claims previously, additional petitions should be permitted.

Section 1.11 Advisory Nature of Regulations

This section is the current section 1.10, renumbered as 1.11, which expressly acknowledges the advisory nature of the clemency regulations in part 1, and provides that the clemency regulations do not limit the President's exercise of his constitutional authority. Renumbering makes clear that this provision applies to the new capital clemency procedures set forth in the newly enacted section applicable in capital cases, as well as to the existing clemency provisions.

Administrative Procedure Act

This rule relates to matters of agency management or personnel, and is therefore exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2). Moreover, to the extent that rulemaking procedures would otherwise be applicable, the Department finds that this rule would be exempted from the requirements of prior notice and comment as a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A). Similarly, the effective date of this rule need not be delayed for 30 days after publication because the rule is not a “substantive rule.” See 5 U.S.C. 553(d).

Executive Order 12866

This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly it has not been reviewed by the Office of Management and Budget.

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

As a rule relating to agency management or personnel, this rule is also therefore excluded from the scope of a covered “rule” for the purposes of Chapter 8 of Title 5, United States Code. See 5 U.S.C. 804(3)(B). Moreover, to the extent that this rule would be considered to be a rule of agency organization, procedure, or practice, it is excluded from the scope of a covered “rule” pursuant to 5 U.S.C. 804(3)(C).

Accordingly, because this action is not a covered “rule,” it is exempt from the requirement for the Department to submit a report to each House of Congress and the Comptroller General before this rule can take effect as provided in 5 U.S.C. 801(a)(1).

List of Subjects in 28 CFR Part 1

• Clemency
• Pardon

With the approval of the President, acting in conformity with his authority as Chief Executive and with Article II, Section 2 of the United States Constitution, and by virtue of the authority vested in me by 28 U.S.C. 509, 510, and 5 U.S.C. 301, part 1 of chapter I of title 28 of the Code of Federal Regulations is amended to read as follows:

PART 1—EXECUTIVE CLEMENCY

1. The authority citation for part 1 continues to read as follows:

Authority: U.S. Const., Art. II, sec. 2; authority of the President as Chief Executive; and 28 U.S.C. 509, 510.

§ 1.10

[Redesignated as § 1.11]

2. Part 1 is amended by redesignating § 1.10 as § 1.11.

3. Part 1 is further amended by adding a new § 1.10 to read as follows:

§ 1.10

Procedures applicable to prisoners under a sentence of death imposed by a United States District Court.

The following procedures shall apply with respect to any request for clemency by a person under a sentence of death imposed by a United States District Court for an offense against the United States. Other provisions set forth in this part shall also apply to the extent they are not inconsistent with this section.

(a) Clemency in the form of reprieve or commutation of a death sentence imposed by a United States District Court shall be requested by the person under the sentence of death or by the person's attorney acting with the person's written and signed authorization.

(b) No petition for reprieve or commutation of a death sentence should be filed before proceedings on the petitioner's direct appeal of the judgment of conviction and first petition under 28 U.S.C. 2255 have terminated. A petition for commutation of sentence should be filed no later than 30 days after the petitioner has received notification from the Bureau of Prisons of the scheduled date of execution. All papers in support of a petition for commutation of sentence should be filed no later than 15 days after the filing of the petition itself. Papers filed by the petitioner more than 15 days after the commutation petition has been filed may be excluded from consideration.

(c) The petitioner's clemency counsel may request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney in support of the clemency petition. The presentation should be requested at the time the clemency petition is filed. The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney.

(d) Clemency proceedings may be suspended if a court orders a stay of execution for any reason other than to allow completion of the clemency proceeding.

(e) Only one request for commutation of a death sentence will be processed to completion, absent a clear showing of exceptional circumstances.

(f) The provisions of this § 1.10 apply to any person under a sentence of death imposed by a United States District Court for whom an execution date is set on or after August 1, 2000.

Dated: August 1, 2000.

Janet Reno,

Attorney General.

Approved: August 2, 2000.

William J. Clinton,

President.