The Justice Department announced yesterday that it has rescinded the protocol for federal executions after a review raised serious concerns about whether lethal injections of pentobarbital cause ”unnecessary pain and suffering.”
In 2021, the attorney general ordered the Justice Department’s Office of Legal Policy to undertake a comprehensive review of the single-drug lethal injection protocol that was used to execute 13 people between July 2020 and January 2021.
Media witnesses described how the individuals’ “stomachs rolled, shook and shuddered as the pentobarbital took effect”—a sign of flash pulmonary edema, which produces terrifying, horrific, and excruciating feelings of suffocating or drowning, not unlike being tortured by waterboarding.
Those reports “raise[d] important questions about our responsibility to treat individuals humanely and avoid unnecessary pain and suffering,” the attorney general said, causing him to declare a moratorium on federal executions and order a review of the execution protocol.
The department conducted an extensive review of scientific, medical, and legal research, as well as recent autopsies of individuals who have received lethal injections of pentobarbital, and consultated with experts within and outside the department.
“Having assessed the risk of pain and suffering associated with the use of pentobarbital,” Attorney General Merrick Garland wrote in a memo to the Bureau of Prisons yesterday, “the review concluded that there is significant uncertainty about whether the use of pentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering.”
Lacking “reasonable confidence” that the current protocol complies with the Constitution and treats individuals being executed “fairely and humanely,” Mr. Garland ordered the Bureau of Prisons director to rescind the protocol.
“In the face of such uncertainty,” he wrote, “the Department should err on the side of treating individuals humanely and avoiding unnecessary pain and suffering.”
The federal review may have implications for states that use pentobarbital in single-drug protocols. As the report noted, the Food and Drug Administration has not reviewed or approved the use of pentobarbital for executions, leaving state and federal governments to rely on compounding pharmacies to obtain the drug. Of 88 registered compounding pharmacies, the department found, all but two have never been inspected by the FDA or were found to have “significant objectionable conditions.”
The review cautioned that other proposed methods of execution must be subjected to the same kind of evaluation to ensure the Justice Department “adhere[s] to its responsibility to treat individuals humanely and avoid unnecessary pain and suffering.”
The attorney general ordered that the moratorium on federal executions that has been in place since 2021 is still in effect.
Three people remain under federal death sentences after President Biden commuted 37 federal death sentences in December.