Authority of Bureau of Prisons Physicians to Perform Autopsies, 77-16

CourtOpinions of the Office of Legal Counsel of the Department of Justice
Citation1 Op. O.L.C. 48
Docket Number77-16
PartiesAuthority of Bureau of Prisons Physicians to Perform Autopsies
Decision Date31 March 1977

1 Op. O.L.C. 48

Authority of Bureau of Prisons Physicians to Perform Autopsies

No. 77-16

United States Department of Justice

March 31, 1977

John M. Harmon Acting Assistant Attorney General Office of Legal Counsel

Authority of Bureau of Prisons Physicians to Perform Autopsies


This is in response to your memorandum requesting our opinion on whether wardens of Federal prisons can be empowered to authorize autopsies of deceased inmates without regard to State laws requiring consent of next of kin or approval by State officials. We have examined the question, and we conclude that legislation is necessary for this purpose. In addition, we suggest the lines that a proposed statute might follow.

The rights of a surviving spouse or next of kin in a dead body derive from the common law. While the details vary among the States, a survey of the law of the District of Columbia and a geographically diverse sample of State law (California, Georgia, Kansas, Massachusetts, and Texas) shows agreement on general principles. The surviving spouse, if any, and otherwise the next of kin have only a right to the reasonably prompt possession on the intact body for purpose of burial or cremation. Although this right is not considered a property right, damages may be awarded for unauthorized interference with the body, including an unauthorized autopsy. See, e.g., Steagall v. Doctors' Hospital, 171 F.2d 352 (D.C. Cir. 1948); Pollard v. Phelps, 56 Ga.App. 408 (1937); Weingast v. State, 44 Misc.2d 824, 254 N.Y.S.2d 952 (1954); Aetna Casualty & Surety Co. v. Love, 132 Tex. 280, 121 S.W.2d 986 (1939). See, generally, Annotation, 83 A.L.R. 2d 956 (1961).

The right, however, is subject to public necessity as defined by State statute. As a general rule, if the proper State administrative or judicial officer determines in good faith that the statutory grounds for an autopsy exist, he or she may proceed without the consent of the spouse or next of kin. See, e.g., California Health & Safety Code §7113; California Government Code §27491.4; Code of Georgia §21-203(3); Massachusetts General Laws Annotated, Ch. 38, § 6; New York Public Health Law §4210; Gahn v. Leary, 318 Mass. 425, 61 N.E.2d 844, (1945); Gray v. State, 55 Tex. Cr. 90, 114 S.W. 635 (1908). [ 49]

State statutory grounds for autopsy vary, but generally include any sudden, violent, unexplained, or otherwise possibly criminally caused death. See, e.g., California Government Code § 27491; Code of Georgia §21-205; New York Public Health Law §4210; Texas Code of Criminal Procedure, Art. 49.01. Three of the States surveyed (California, Georgia, and Texas) specifically provide for autopsies in the case of any death in prison, and New York authorizes the Commissioner of Corrections to procure an autopsy at his discretion. California Government Code §24791; Code of Georgia §21-205(2); New York Public Health Law §4210; Texas Code of Criminal Procedure, Art. 49.01.

Our partial examination of State law leads us to conclude that the right of the spouse or next of kin to control the disposition of a dead body is subject to public necessity as defined by one with authority to do so. The statutory power of local officials to order autopsies is given in the furtherance of a state interest, usually the investigation of crime or the protection of public health.

Because the Attorney General and the Bureau of Prisons are responsible for the custody, discipline, and welfare of Federal prisoners, 18 U.S.C. §§4001, 4042(3), Congress can, of course, confer on them the specific authority to conduct autopsies without consent when reasonably necessary to perform these functions.[1] See, generally, Ex parte, Siebold, 100 U.S. 371, 383-86 (1879); McCulloch v. Maryland, 17 U.S. 316, 408-17 (1819). By analogy with California, Georgia, New York, and Texas law, a statute can provide autopsy authority for any death occurring in prison.

More circumscribed authority might be desired to preclude autopsies for scientific or medical reasons unrelated to prison administration. If so, a statute could appropriately authorize an autopsy in the event of homicide, suicide, fatal illness or accident, or other unexplained death of an inmate if the Bureau determines one is necessary to detect crime, maintain discipline, protect the health or safety of the inmates, remedy official misconduct, or defend the United States or its employees from tort liability arising from the administration of a Bureau institution.

You have suggested that the authority to perform autopsies without consent might be equally permissible by regulation promulgated pursuant to the authority conferred by 5 U.S.C. §301.[2] Such regulations [ 50]

have the force of law if within the scope of the relevant statute. Georgia v. United States, 411 U.S. 526, 536 (1973); Smith v. United...

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