Imagine the fictional situation: someone (e.g. a U.S. citizen) commits a capital offense, he is arrested and legally sentenced to death.
Then he somehow escapes.
His hiding place is discovered, and the only way to kill him is by a drone attack.
Can it be done? Is it a legal execution?
No, not in texas anyway. I have not reviewed the other death-sentence states but assume they will follow similar procedures:
Article 43.19 of the Texas Code of Criminal Procedure defines the place of execution:
The execution shall take place at a location designated by the Texas Department of Criminal Justice in a room arranged for that purpose.
Although there may be some convoluted scenario where the escapee could end up in such a room, a drone strike falls outside of the permitted method of execution found at Article 43.14(a):
Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time after the hour of 6 p.m. on the day set for the execution, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the director of the correctional institutions division of the Texas Department of Criminal Justice.
Law enforcement are allowed to use “reasonable force” to effect an arrest. They are also allowed to use reasonable force to prevent imminent harm to people or property.
As described, the felon is not a danger to other people or property and a drone strike would be an ineffective means of effecting an arrest. The force used is not reasonable.
Nor can the drone be used as a means of lawfully carrying out the sentence. An execution in the USA is a highly formalised legal process and must be done strictly in accordance with the law to ensure it is not "cruel and unusual". Blowing people up with high explosives which may or may not kill them is not an authorized method of legal execution.
There is a special case to consider which you probably didn't have in mind but which may be relevant anyway.
American citizens have been killed by targeted drone strikes. The government reasoned that they were combatants in an armed conflict with the United States. This designation as well as the decision to eliminate the target is made by the executive alone.
A conviction by a regular court would probably not legally prevent the government to eliminate a target as part of a military operation, including targeted drone strikes. Of course the legitimization would come from the target's military status, not from their criminal conviction. Such a case could arise if the target had been convicted of a terrorist act that can be regarded part of an armed conflict with the United States.
Additional NO:
While the Federal Government does retain the death penalty, it is rarely used and since Gregg v. Georgia, only sixteen people have been put to death by the Feds. All have been by lethal injection. The vast majority of Post-Gregg executions are done by state governments. The U.S. Military has not used the death penalty since 1961.
Since its the Federal Government, via the military, that would be flying armed drones capable of this, they would have to pull the trigger on a drone strike. Several laws like the Posse Comitatus Act prevent the U.S. military from engaging in Law Enforcement actions in the U.S., which this scenario would certainly be. The responsible agency of government would likely be state or local police OR the U.S. Marshal Service if the escapee has crossed State Lines (Possibly FBI if they are following new crimes).
While it's likely that the use of lethal force is authorized, it would be police shooting the escapee, not the military drone strike.
If the escaped convict is reasonably capable of being arrested without the use of deadly force, then as mentioned above, the use of a drone to apply deadly force would be excessive force. This could result in judgments against the agencies and individuals responsible for the use of excessive force. Just because the escapee is sentenced to death doesn't authorize other people (even law enforcement) to administer that sentence.
It is interesting to note that there is one very close precedent for the use of a drone to apply deadly force by a law enforcement agency that I'm aware of in US History, which I've not seen brought up anywhere else here. On July 7 2016, Micah Johnson killed five police officers in Dallas and injured several more before barricading himself. Negotiations were attempted and deemed to be ineffective, so a decision was made to use a bomb disposal robot armed with C-4 to kill Johnson without further law enforcement casualties. To my knowledge, this is still the only instance of a robot or drone being used for deadly force by a law enforcement entity in the United States, and I've never seen a good argument for it being unreasonable under the extremely unusual and specific circumstances in that situation. There is quite reasonably plenty of concern about the precedent it set, but it's never been deemed excessive or unreasonable by the courts.
In terms of its relation to the original question, if the hypothetical escapee were barricaded and seemingly incapable of being arrested without further casualties, this precedent might be one that a law enforcement agency would point to when making the call to use deadly force, though it's certainly not legally settled ground. In that circumstance though, the escapee's death sentence wouldn't really be a justification for the use of deadly force.
Counterargument: Yes, in the sense that those involved would be very unlikely to face criminal prosecution, although the taxpayers of the police force responsible might have to pay damages.
The obvious precedent is the MOVE bombing, but similar considerations of excessive force and starting a fire which results in the deaths of those under siege apply. I would say the preconditions were:
The situation of drone strikes outside the US is different. It is not, in general, against US law to commit crimes overseas, unless it's specifically provided for in US law or affects the US. US police forces do not have overseas jurisdiction. The US Supreme Court has declined to review the test case which concluded that military action is not subject to court review, so it would appear that it's entirely legal under civilian law for the US military to murder people overseas, provided it complies with military law.
(It is of course almost certainly against Yemeni law for the US to murder people in Yemen, but they lack the power to do anything about it)
