Secret Execution Drug Supplier Confirmed, While Federal Death Penalty Reviews Continue at Department of Justice

Recent report­ing by The Intercept con­firms a sto­ry aired in April 2024 on Last Week Tonight with John Oliver iden­ti­fy­ing Connecticut-based Absolute Standards as the source of the exe­cu­tion drugs used in 13 fed­er­al exe­cu­tions in 2020 and 2021. Absolute Standards pro­duces mate­ri­als for cal­i­brat­ing research equip­ment, but in 2018, it applied to the Drug Enforcement Administration to be reg­is­tered as a bulk pro­duc­er of pen­to­bar­bi­tal, the anes­thet­ic used in fed­er­al exe­cu­tions and in many death penalty states.

An anony­mous source told The Intercept about a meet­ing with the company’s own­er and its direc­tor, say­ing, ​“They’d been read­ing about it in the papers. And they saw that peo­ple couldn’t get it. They were like, ​‘Well, we make the stan­dard, so we know how to make it. So we can just make it.’ They basi­cal­ly bragged about how they built this lit­tle home mar­ket.” Absolute Standards pro­duced the raw ingre­di­ent, which was sent to an unknown com­pa­ny that used it to make pentobarbital. 

A for­mer offi­cial from the fed­er­al Bureau of Prisons (BOP), who also remained anony­mous, couldn’t remem­ber exact­ly how Absolute Standards was iden­ti­fied as a pos­si­ble source of exe­cu­tion drugs, but said, ​“I know that we had peo­ple that were just call­ing every com­pa­ny that they could to find out if they were able and will­ing to pro­duce it.” Out of con­cern that reveal­ing the company’s iden­ti­ty might lead to boy­cotts or protests, the pay­ments from the gov­ern­ment were not logged in its usu­al pub­lic sys­tem. ​“I don’t recall how it was done. It was prob­a­bly not done through their nor­mal pay­ments process,” the for­mer BOP offi­cial said. ​“Everything was done dis­creet­ly, because again, the fear was that pub­lic­i­ty would result in this com­pa­ny no longer want­i­ng to be will­ing to do business.”

Though Absolute Standards was not pub­licly named as the drug sup­pli­er until 2024, it was known to mem­bers of Congress when the fed­er­al exe­cu­tions began dur­ing the Trump Administration. Representatives Ayanna Pressley and Jamie Raskin sent the com­pa­ny a let­ter on the day of the first fed­er­al exe­cu­tion in 2020, ask­ing about its involve­ment, but nev­er received a reply. A staffer for Connecticut Rep. Rosa DeLauro raised con­cerns with Connecticut Attorney General William Tong that death penal­ty states might seek also drugs from the com­pa­ny. ​“There are sev­er­al states that are now active­ly look­ing to fol­low the fed­er­al government’s lead in acquir­ing this drug and resum­ing exe­cu­tions,” she wrote. AG Tong then wrote to Absolute Standards, explain­ing that, ​“Connecticut has a strong pub­lic pol­i­cy against exe­cu­tions.” The state abol­ished cap­i­tal pun­ish­ment in 2012. Producing exe­cu­tion drugs for oth­er states, AG Tong wrote, ​“is con­trary to the val­ues and poli­cies of this state.”

The rev­e­la­tion of the drug sup­pli­er comes three years after the last fed­er­al exe­cu­tion. After President Biden took office in 2021, Attorney General Merrick Garland announced a mora­to­ri­um on exe­cu­tions and direct­ed the Deputy Attorney General to lead a mul­ti-pronged review of the fed­er­al government’s exe­cu­tion poli­cies, includ­ing changes recent­ly made under the Trump Administration. They includ­ed: 1) a review coor­di­nat­ed by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopt­ed in 2019, to assess the risk of pain and suf­fer­ing asso­ci­at­ed with the use of pen­to­bar­bi­tal; 2) a review coor­di­nat­ed by the Office of Legal Policy to con­sid­er changes to Justice Department reg­u­la­tions made in November 2020 that expand­ed the per­mis­si­ble meth­ods of exe­cu­tion beyond lethal injec­tion, and autho­rized the use of state facil­i­ties and per­son­nel in fed­er­al exe­cu­tions; and 3) a review of the Justice Manual’s cap­i­tal case pro­vi­sions, includ­ing the December 2020 and January 2021 changes to expe­dite exe­cu­tion of cap­i­tal sen­tences. Only the Justice Manual review has been com­plet­ed, with changes that includ­ed removal of the pro­vi­sions intend­ed to speed federal executions. 

The mora­to­ri­um on exe­cu­tions has not had any effect on the cas­es of those cur­rent­ly on fed­er­al death row, where the DOJ con­tin­ues to aggres­sive­ly defend their death sen­tences and oppose relief. One new fed­er­al death sen­tence has also been imposed under the Biden Administration. Robert Bowers was con­vict­ed of killing 11 Jewish wor­ship­pers at a Pittsburgh syn­a­gogue in October 2018. His pros­e­cu­tion was ini­ti­at­ed under the Trump admin­is­tra­tion, but the case was pros­e­cut­ed by the Biden Administration’s DOJ. Similarly, Sayfullo Saipov was also charged dur­ing the Trump Administration and pros­e­cut­ed by the Biden Administration’s DOJ, but he was sen­tenced to life in prison with­out parole after a New York fed­er­al jury could not agree to sen­tence him to death. 

After tak­ing office, Attorney General Garland with­drew more than 30 notices of intent to seek the fed­er­al death penal­ty against defen­dants that had been filed dur­ing the Trump Administration. He also decid­ed against seek­ing a death sen­tence for Patrick Crusius, who pled guilty to near­ly 50 fed­er­al hate crime charges in the racial­ly moti­vat­ed killing of 23 Latinx peo­ple and injur­ing of 22 oth­ers in an El Paso, Texas Walmart in August 2019.

But ear­li­er this year, AG Garland autho­rized the DOJ’s first new death penal­ty case. The DOJ will seek a fed­er­al death sen­tence for Payton Gendron, the then-18-year-old who killed 10 Black peo­ple at a Tops super­mar­ket in Buffalo, New York in 2022. Mr. Gendron, who has already pled guilty to state charges and has been sen­tenced to life with­out the pos­si­bil­i­ty of parole, is not expect­ed to go to tri­al in fed­er­al court until 2025.