[Federal Register Volume 65, Number 153 (Tuesday, August 8, 2000)]
[Rules and Regulations]
[Pages 48379-48381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19973]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Office of the Pardon Attorney
28 CFR Part 1
[AG ORDER No. 2317-2000]
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
[[Page 48380]]
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
(202) 616-6070.
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.
[[Page 48381]]
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.
Sec. 1.10 [Redesignated as Sec. 1.11]
2. Part 1 is amended by redesignating Sec. 1.10 as Sec. 1.11.
3. Part 1 is further amended by adding a new Sec. 1.10 to read as
follows:
Sec. 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 Sec. 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.
[FR Doc. 00-19973 Filed 8-7-00; 8:45 am]
BILLING CODE 4410-29-U