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.