House Committee Asks Justice Department Its Plans on Resuming Executions, Purchasing Execution Drugs

The House Committee on Oversight and Reform has sent a let­ter to U.S. Attorney General Merrick Garland seek­ing infor­ma­tion on the Department of Justice’s death penal­ty prac­tices and poli­cies, includ­ing whether DOJ plans to resume fed­er­al exe­cu­tions and to obtain new sup­plies of the drug pen­to­bar­bi­tal to car­ry out additional executions. 

The let­ter, signed by Representatives Jamie Raskin (D – Maryland) and Ayanna Pressley (D – Massachusetts) and sent December 15, 2021, asked the Justice Department to pro­vide a staff brief­ing on the sub­jects by December 22, 2021. Raskin is chair of the Oversight Committee’s Subcommittee on Civil Rights and Civil Liberties, and Pressley, who serves on the sub­com­mit­tee, is the lead House spon­sor of the pro­posed Federal Death Penalty Prohibition Act of 2021. 

During the 2020 pres­i­den­tial cam­paign, then-can­di­date Joe Biden post­ed a pledge on his cam­paign web­site to ​“work to pass leg­is­la­tion to elim­i­nate the death penal­ty at the fed­er­al lev­el, and incen­tivize states to fol­low the fed­er­al government’s exam­ple.” Garland announced on June 30, 2021 that DOJ would for­mal­ly pause fed­er­al exe­cu­tions while it under­took a review of exec­u­tive branch death-penal­ty poli­cies adopt­ed in the last two years of the Trump admin­is­tra­tion. Garland’s direc­tive did not pre­vent fed­er­al pros­e­cu­tors from con­tin­u­ing to seek the death penal­ty, oppos­ing appeals brought by fed­er­al death-row pris­on­ers, or seek­ing to rein­state death sen­tences that have been over­turned by fed­er­al appeals courts. 

In May 2021, DOJ lawyers defend­ed a South Carolina fed­er­al judge’s rul­ing that Dylann Roof was com­pe­tent to waive the assis­tance of coun­sel in his tri­al for the racial­ly moti­vat­ed mur­ders of nine parish­ioners in an his­toric African-American church, and urged the U.S. Court of Appeals to uphold the death sen­tences imposed on Roof for those killings. Then, dur­ing oral argu­ment in October, DOJ asked the U.S. Supreme Court to rein­state the death sen­tences imposed on Dzhokar Tsarnaev for his role in the Boston Marathon bombing.

The Tsarnaev argu­ment, the com­mit­tee mem­bers said, ​“rais[ed] new ques­tions about [the Administration’s] plans to resume fed­er­al exe­cu­tions. Given its recent actions, we are con­cerned that DOJ may renew its efforts to obtain pen­to­bar­bi­tal from non-FDA-reg­u­lat­ed phar­ma­cies for use in future fed­er­al exe­cu­tions,” they wrote.

Under the Trump admin­is­tra­tion, the fed­er­al gov­ern­ment changed its exe­cu­tion pro­to­col from a three-drug com­bi­na­tion of lethal drugs to a sin­gle-drug pro­to­col using pen­to­bar­bi­tal. The change was insti­tut­ed, the let­ter said, despite ​“mul­ti­ple reports” that pen­to­bar­bi­tal exe­cu­tions car­ried out by states had caused pris­on­ers ​“to scream of burn­ing pain and writhe in agony while strapped to gur­neys.” Nonetheless, the gov­ern­ment, Rankin and Pressley wrote, ​“used pen­to­bar­bi­tal sourced from com­pound­ing phar­ma­cies not reg­u­lat­ed by the Food and Drug Administration” while con­duct­ing more exe­cu­tions in six months than the fed­er­al gov­ern­ment had car­ried out in pre­ced­ing seventy years. 

Media wit­ness­es who cov­ered the thir­teen fed­er­al exe­cu­tions report­ed that ​“pris­on­ers’ stom­achs rolled, shook and shud­dered as the pen­to­bar­bi­tal took effect,” and coun­sel to one of the exe­cut­ed pris­on­ers indi­cat­ed that autop­sy results showed he had expe­ri­enced ​“extreme pain,” akin to drown­ing while immo­bi­lized, dur­ing the exe­cu­tion. DOJ offi­cials and the fed­er­al Bureau of Prisons have refused to dis­close any infor­ma­tion about how or from whom it obtained the com­pound­ed drugs and pro­vid­ed the courts and the pub­lic with san­i­tized descrip­tions of sup­pos­ed­ly peaceful executions. 

Citing ​“broad author­i­ty to inves­ti­gate ​‘any mat­ter’ [at] ​‘any time,’” the com­mit­tee sought prompt a prompt brief­ing regard­ing the sta­tus and find­ings of DOJ’s review of the Trump Administration exe­cu­tion prac­tices; ​“any plans to resume fed­er­al exe­cu­tions; any plans to pro­cure pen­to­bar­bi­tal for the pur­pose of con­duct­ing exe­cu­tions; and DOJ’s poli­cies, prac­tices, or guid­ance on federal executions.”