28 C.F.R. § 26.4

Other execution procedures

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Except to the extent a court orders otherwise:

(a) The Director of the Federal Bureau of Prisons or his designee shall notify the prisoner under sentence of death of the manner of execution and the date designated for execution at least 20 days in advance, except when the date follows a postponement of fewer than 20 days of a previously scheduled and noticed execution, in which case the Director of the Federal Bureau of Prisons or his designee shall notify the prisoner as soon as possible. If applicable law provides that the prisoner may choose among multiple manners of execution, the Director or his designee shall notify the prisoner of that option.

(b) Beginning seven days before the designated date of execution, the prisoner shall have access only to his spiritual advisers (not to exceed two), his defense attorneys, members of his family, and the officers and employees of the institution designated in § 26.3(a)(2). Upon approval of the Director of the Federal Bureau of Prisons or his designee, the prisoner may be granted access to such other persons as the prisoner may request.

(1) Necessary personnel selected by the Marshal and the Director of the Federal Bureau of Prisons or his designee;

(2) Those attorneys of the Department of Justice whom the Deputy Attorney General determines are necessary;

(3) Not more than the following numbers of persons selected by the prisoner:

(i) One spiritual adviser;

(ii) Two defense attorneys; and

(iii) Three adult friends or relatives; and

(4) Not more than the following numbers of persons selected by the Director of the Federal Bureau of Prisons or his designee:

(i) Eight citizens; and

(ii) Ten representatives of the press.

(d) No other person shall be present at the execution, unless leave for such person's presence is granted by the Director of the Federal Bureau of Prisons. No person younger than 18 years of age shall witness the execution.

(e) The Director of the Federal Bureau of Prisons or his designee should notify those individuals described in paragraph (c) of this section as soon as practicable before the designated time of execution.

(f) No photographic or other visual or audio recording of the execution shall be permitted.

(g) After the execution has been carried out, qualified personnel selected by the Director of the Federal Bureau of Prisons or his designee shall conduct an examination of the body of the prisoner to determine that death has occurred and shall inform the Marshal and the Director of the Federal Bureau of Prisons or his designee of his determination. Upon notification of the prisoner's death, the Marshal shall ensure that appropriate notice of the sentence's implementation is filed with the sentencing court.

(h) The remains of the prisoner shall be disposed of according to procedures established by the Director of the Federal Bureau of Prisons.

[57 FR 4901, Jan. 19, 1993, as amended by Order No. 4911-2020, 85 FR 75854, Nov. 27, 2020]

Notes of Decisions

Cited in 13 cases (3 in the last 5 years), 2001–2021 · leading case: Ent. Network, Inc. v. Lappin, 134 F. Supp. 2d 1002 (S.D. Ind. 2001).

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Ent. Network, Inc. v. Lappin, 134 F. Supp. 2d 1002 (S.D. Ind. 2001). · cites it 12× “ENI filed this action for declaratory and injunctive relief, challenging the constitutionality of 28 C.F.R. § 26.4 (f), prohibiting photographic, audio and visual recording devices at federal executions.”

Earlene Branch Peterson v. William P. Barr, 965 F.3d 549 (7th Cir. 2020). “28 C.F.R. § 26.4 (c)–(d) (emphasis added).”

United States v. Sampson, 300 F. Supp. 2d 278 (D. Mass. 2004). “See 28 C.F.R. § 26.4 (c)(2). Each of the prosecutors in this case lives in Massachusetts.”

Ramirez v. Bryan Collier, Exec., 10 F.4th 561 (5th Cir. 2021). “8 See 28 C.F.R. § 26.4 (2020); Nevada Department of Corrections, Execution Manual (Jun.”

Hall v. Barr (D.D.C. 2020). · cites it 2× “See 28 C.F.R. § 26.4 (a). Plaintiff has failed to show that a ninety-day notice is a “deeply rooted” historical practice in this nation’s history, and therefore his substantive due process claim fails.”

Orlando Hall v. William Barr (D.C. Cir. 2020). · cites it 2× “28 C.F.R. § 26.4 (a). Hall does not deny that he received that required notice.”

Mitchell v. Barr (D.D.C. 2020). “1 at 8; see 28 C.F.R. § 26.4 (a). The OPA held a hearing on Mr.”

In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases (D.D.C. 2020). “) But, although 28 C.F.R. § 26.4 requires the warden of the designated facility to “notify the prisoner under sentence of death of the date designated for execution at least 20 days in advance,” Plaintiffs can point to no case establishing a constitutionally protected interest…”

In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases (D.D.C. 2020). “concurring in part and concurring in the judgment), providing fewer days’ notice than Plaintiffs may be entitled does not rise to the level of irreparable harm when Plaintiffs have been under a death sentence for well over a decade, have received the minimum twenty-day notice…”

Montgomery v. Barr (D.D.C. 2020). “” 28 C.F.R. § 26.4 (a). In other words, in Montgomery’s view, the Director may not set a new execution date until the stay expires and, when he does so, he must set the new date at least 20 days from when the Director acts, so that the Warden can provide the required notice.”

In the Matter of the Fed. Bureau of Prisons' Execution Protocol Cases (D.D.C. 2021). “But Higgs has already received the notice to which he is entitled—twenty days’ notice in accordance with 28 C.F.R. § 26.4 (a) and sixty days between judgment and execution in accordance with 28 C.”

Hartkemeyer v. Barr (S.D. Ind. 2020). “Honken designated Father O’Keefe as the spiritual advisor to attend his execution pursuant to 28 C.F.R. § 26.4 (c)(3)(i), and requested that Father O'Keefe be permitted to accompany Mr.”

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