Federal Bureau of Prisons Sanitized Execution Reports, Omitting Disturbing Details Observed by Media Witnesses

Federal Bureau of Prisons (BOP) offi­cials repeat­ed­ly mis­rep­re­sent­ed accounts of the exe­cu­tions they car­ried out in 2020 and 2021, pro­vid­ing san­i­tized descrip­tions of the exe­cu­tions that omit­ted all ref­er­ences to dra­mat­ic body move­ments and signs of dis­tress observed by media wit­ness­es, accord­ing to an Associated Press report. The sworn accounts by exe­cu­tion­ers, which fed­er­al pros­e­cu­tors pro­vid­ed to an expert wit­ness and to a fed­er­al dis­trict court judge to defeat the pris­on­ers’ court claims that the exe­cu­tion process was excru­ci­at­ing­ly painful and uncon­sti­tu­tion­al­ly cru­el, devi­at­ed sig­nif­i­cant­ly from the obser­va­tions of mul­ti­ple jour­nal­ists who wit­nessed the same events. 

The government’s ques­tion­able depic­tion of what pris­on­ers expe­ri­enced while being put to death ​“direct­ly impli­cates con­cerns about the con­sti­tu­tion­al­i­ty of the fed­er­al government’s exe­cu­tion pro­ce­dures,” said Megan McCracken, a lawyer with the Death Penalty Clinic at the University of California Berkeley School of Law. McCracken told Newsweek that neu­tral eye­wit­ness accounts of the exe­cu­tions had ​“described pris­on­ers gasp­ing for breath and their abdomens con­vuls­ing. These move­ments,” she said, ​“are con­sis­tent with the pris­on­ers con­scious­ly expe­ri­enc­ing flash pul­monary ede­ma,” a med­ical con­di­tion in which flu­id fills the lungs and air­ways, caus­ing a sen­sa­tion sim­i­lar to drowning. 

Federal exe­cu­tion­ers uni­form­ly described the exe­cu­tions as tran­quil and prob­lem-free, using the same metaphor of the pris­on­er peace­ful­ly going to sleep, AP report­ed. ​“During the entire­ty of the exe­cu­tion, [William] LeCroy did not appear to be in any sort of dis­tress, dis­com­fort, or pain,” wrote exe­cu­tion­er Eric Williams in legal doc­u­ments filed as part of fed­er­al pris­on­ers’ chal­lenge to the exe­cu­tion pro­to­col. ​“A short time after he took a deep breath and snored, it appeared to me that LeCroy was in a deep, com­fort­able sleep.” By con­trast, jour­nal­ists for AP who wit­nessed LeCroy’s September 22, 2020 exe­cu­tion said his chest heaved vio­lent­ly, sug­gest­ing he expe­ri­enced flash pulmonary edema. 

Experts who tes­ti­fied at a hear­ing before the U.S. District Court for the District of Columbia pro­vid­ed con­flict­ing opin­ions, based on which account of the exe­cu­tion they accept­ed. Kendall Von Crowns, an expert who tes­ti­fied on behalf of the fed­er­al gov­ern­ment, said the executioner’s account ​“does not state that there was any irreg­u­lar or uncon­trolled heav­ing,” and sug­gest­ed that oth­ers had mere­ly observed ​“hyper­ven­ti­la­tion due to the anx­i­ety asso­ci­at­ed with [LeCroy’s] impend­ing death.” Von Crowns claimed that the heav­ing ​“has no rel­e­vance to pul­monary edema whatsoever.” 

Federal pros­e­cu­tors object­ed when lawyers for the pris­on­ers attempt­ed to ques­tion Von Crowns about media descrip­tions of the appar­ent dis­tress expe­ri­enced by the pris­on­ers. AP reporter Michael Tarm, who per­son­al­ly wit­nessed ten of the 13 exe­cu­tions, said AP and oth­er media out­lets described LeCroy’s ​“stom­ach area [as hav­ing] heaved uncon­trol­lably imme­di­ate­ly after the pen­to­bar­bi­tal injec­tion [for] about a minute.” This ​“dis­tinc­tive jerk­ing and jolt­ing was vis­i­ble in at least half the exe­cu­tions,” Tarm report­ed. Tarm also con­tra­dict­ed Von Crowns’ asser­tion of pre-death anx­i­ety, writ­ing that “[a]ll the jour­nal­ist reports said the move­ments hap­pened with­in min­utes of injec­tions, nev­er in the min­utes before an inmate was pronounced dead.”

Gail Van Norman, an expert for the pris­on­ers’ legal team, said the jour­nal­ists’ descrip­tions were con­sis­tent with a per­son expe­ri­enc­ing flash pul­monary ede­ma. As flu­id blocks the air­way, it alters the rhythm of the chest, diaphragm, and abdomen, she tes­ti­fied, ​“giv­ing the appear­ance of the chest and abdomen rock­ing oppo­site of one anoth­er, or a heav­ing abdomen.” Van Normal said a pris­on­er suf­fer­ing from flash pul­monary ede­ma would expe­ri­ence a sen­sa­tion ​“iden­ti­cal to that report­ed by vic­tims of near drown­ing or suf­fo­ca­tion” like that pro­duced dur­ing ​“enhanced inter­ro­ga­tions” such as water­board­ing. ​“She said, “[t]hese are among the most excru­ci­at­ing feel­ings known to man.”

Autopsy results from the exe­cu­tions show that flash pul­monary ede­ma can also occur even when wit­ness­es do not observe out­ward signs of dis­tress. In August 2020, Tarm described Wesley Purkey as ​“blink­ing repeat­ed­ly as the pen­to­bar­bi­tal was inject­ed” but show­ing no ​“obvi­ous out­ward signs he was in pain.” However, an autop­sy exam­i­na­tion of his lungs found that Purkey had suf­fered “[s]evere bilat­er­al acute pulmonary edema.”

In their accounts of the exe­cu­tions, prison offi­cials described the exe­cu­tion gur­ney as a ​“bed” and pris­on­ers’ dying breaths as ​“snores.” None of the exe­cu­tion­ers men­tioned that any of the pris­on­ers’ bod­ies jerked or jolt­ed, as reporters repeat­ed­ly observed. Prison offi­cials turned off audio from the exe­cu­tion cham­ber pri­or to the injec­tions, so the jour­nal­ists in atten­dance could not hear what tran­spired in the exe­cu­tion cham­ber or eval­u­ate the exe­cu­tion­ers’ assess­ment of ​“snores.” William Breeden, a spir­i­tu­al advi­sor who attend­ed to Corey Johnson dur­ing his exe­cu­tion on January 14, 2021, report­ed that ​“Corey said his hands and mouth were burn­ing.” However, exe­cu­tion per­son­nel who were in the cham­ber claimed not to have heard Johnson’s statement. 

AP said “[t]he sworn accounts by exe­cu­tion­ers, which gov­ern­ment fil­ings cit­ed as evi­dence the lethal injec­tions were going smooth­ly, raise ques­tions about whether offi­cials mis­led courts to ensure the exe­cu­tions sched­uled from July to mid-January were done before death penal­ty oppo­nent Joe Biden became pres­i­dent.” Evidence sug­gests that the government’s san­i­tized exe­cu­tion accounts like­ly con­tributed to court deci­sions that per­mit­ted those exe­cu­tions to proceed. 

U.S. District Judge Tanya Chutkan, who heard chal­lenges to the fed­er­al exe­cu­tion pro­to­col, ulti­mate­ly decid­ed that the evi­dence was not ade­quate to halt the exe­cu­tions. ​“While the court con­tin­ues to be con­cerned at the pos­si­bil­i­ty that inmates will suf­fer excru­ci­at­ing pain dur­ing their exe­cu­tions,” she wrote, attor­neys for the fed­er­al pris­on­ers ​“have not estab­lished that flash pul­monary ede­ma is ​‘cer­tain’ or even ​‘like­ly’ to occur before an inmate is rendered insensate.”

“Secrecy sur­round­ed all aspects of the exe­cu­tions,” AP wrote. ​“Courts relied on those car­ry­ing them out to vol­un­teer infor­ma­tion about glitch­es. None of the exe­cu­tion­ers mentioned any.”