U.S. House Oversight Committee Launches Investigation into Resumption of Federal Executions

The U.S. House of Representatives Committee on Oversight and Reform announced on August 14, 2019 that it has launched an investigation into the Department of Justice’s plan to restart federal executions using the drug pentobarbital. Citing concerns about the source of drugs the Administration intends to use in five executions it has scheduled in December 2019 and January 2020, the Oversight Committee’s Subcommittee on Civil Rights and Civil Liberties has sought documents and information from the Department of Justice (DOJ) related to Attorney General William Barr’s announcement on July 25, 2019 that the federal Bureau of Prisons (BOP) would resume executions after a sixteen-year hiatus.

The letter, signed by Subcommittee Chair Jamie Raskin (D-MD) and Congresswoman Ayanna Pressley (D-MA), seeks information about the manufacturer of the pentobarbital the government plans to use to execute prisoners in its new one-drug execution protocol, the procurement process, and whether the BOP has already acquired the drugs. “We are extremely concerned about the types of facilities from which the Bureau will obtain its pentobarbital, whether the Bureau will be able to guarantee that its intended method of execution is as painless as possible, and whether the Bureau will be subject to rigorous protocols to prevent the problems that have occurred at the state level,” Raskin and Pressley wrote.

The Administration’s new execution plan is similar to the single-drug execution process used in Texas, Missouri, and Georgia. Collectively, those state have carried out 92 pentobarbital executions since January 2014, two thirds of the lethal-injection executions in the United States during that period.

“Numerous reports document the dangers associated with pentobarbital and the difficulty in procuring reliable doses,” the letter says. “Texas reportedly purchased its supply from a compounding pharmacy whose state license was on probation for providing dangerous drug mixtures to children; the same pharmacy was warned by the Food and Drug Administration (FDA) about ‘serious deficiencies in [its] practices for producing sterile drug products.’ Missouri reportedly purchased its pentobarbital from a pharmacy that has repeatedly been found to engage in hazardous pharmaceutical procedures.”

The committee members called the Administration’s possible reliance on compounding pharmacies as a source of execution drugs “particularly troubling” given that “though pentobarbital is supposed to be painless, five people executed in Texas using pentobarbital complained during their executions that they felt as if they were burning before they finally died.” In November 2018, the Death Penalty Information Center issued a major report, Behind the Curtain: Secrecy and the Death Penalty in the United States that warned about the dangers of compounded drugs produced by questionable drug producers. “One inmate” who was executed with compounded pentobarbital, the Committee’s letter said, “yelled ‘I can feel that it does burn. Burning!’”

The Committee also asked the DOJ to produce records related to its May 3, 2019 Office of Legal Counsel opinion asserting that the Food and Drug Administration lacks authority to regulate lethal injection drugs. In 2015, the FDA, acting pursuant to a federal court directive, seized drugs Arizona and Texas had attempted to illegally import from a drug supplier in India.

The House action is the latest in a flurry of highly politicized activity relating to the federal death penalty. On August 5, urging that “capital punishment be delivered quickly, decisively, and without years of needless delay,” President Trump directed the DOJ to propose legislation to accelerate the federal execution process for those charged with mass shootings or with killing law enforcement personnel. One week later, Attorney General Barr delivered a speech to law enforcement in New Orleans promising “a strict timetable for judicial proceedings that will allow the imposition of the death sentence without undue delay.” That legislation is unlikely to pass. On July 25, Representative Pressley introduced a bill in the House to abolish the federal death penalty, followed one week later by a similar bill introduced by three Democratic senators on the Senate Judiciary Committee. The Senate bill is co-sponsored by four U.S. senators who are running for the Democratic nomination for President in 2020.

The House subcommittee has asked the DOJ and BOP to respond to its requests by August 27, 2019.

Read the August 14, 2019 letter from the House Committee on Oversight and Reform to the Department of Justice and the press release announcing the Committee’s investigation.