Among his flurry of day-one executive orders, President Donald Trump directed the Justice Department to help states obtain lethal injection drugs and launch a whole new round of capital prosecutions. But even if he succeeds in that endeavor, thanks to former Attorney General Merrick Garland, it will be harder for Trump to turn death sentences into executions than it was at the start of his first term.
As the White House describes it, the president ordered the Department of Justice to “seek the death penalty as the appropriate punishment for heinous crimes against humanity, including those who kill law enforcement officers and illegal migrants who maim and murder Americans.” This order is one step toward fulfilling promises he made during the campaign.
That is likely why, on January 15, five days before he left office, former Attorney General Merrick Garland rescinded the federal government’s death penalty protocol.
He did so after a review by the Department of Justice’s Office of Legal Policy raised serious questions about the drug pentobarbital sodium, “a sedative that slows the activity of the brain and nervous system.” which was used in federal executions. That review comes at a time when states have turned to pentobarbital due to a shortage of other lethal injection drugs.
Garland’s decision is both a bold parting gift to abolitionists by an attorney general who was often the target of criticism for his seeming ambivalence about capital punishment and an example of the bureaucratic obstacles the new president will face as he tries to turn his executive orders into action.
What Garland did might seem futile, given President Trump's fervent embrace of capital punishment. In addition, as the Washington Post says, “The pentobarbital protocol was adopted by Bill Barr, attorney general during Trump’s first term, to replace a three-drug mix used in the 2000s….” It was used in the thirteen executions that Barr and his Justice Department carried out in 2020 and 2021. It is not clear where they obtained pentobarbital and whether they did so legally.
A Freedom of Information Act request filed by journalists at HBO’s “Last Week Tonight” identified Absolute Standards in Connecticut as the federal government’s supplier. It turns out that while Absolute Standards “has been registered with the Drug Enforcement Agency (DEA) since August 2018 to produce pentobarbital, (but) the drugs are not authorized” for human use. In July 2024, the company announced that it would no longer produce the drug for use in executions.
In addition to questions about the supplier, the American Civil Liberties Union rightly notes that “Procedures for putting animals to death…are much stricter than those for executing humans.” So, the Trump Department of Justice will need to do some work if it wants to carry out lethal injection executions.
Moreover, in President Trump’s first term, as the Post says, “the Justice Department…sanitized the accounts of the executions carried out in 2020 and 2021. Government lawyers said the process of dying by lethal injection was like falling asleep, and they called…final breaths ‘snores.’”
What Garland did ended that cruel charade. It offered what one anti-death penalty lawyer calls “a damning condemnation of the use of pentobarbital to poison prisoners to death”
No matter their source and the procedures used to conduct them, many of the pentobarbital executions carried out by the federal and state governments have not gone smoothly. One study estimates that seven percent of them were botched.
Reporters who witnessed the pentobarbital executions carried out in Trump’s first term “described how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect.” Lawyers for the condemned argued that “pentobarbital caused flash pulmonary edema, in which fluid rushes through quickly disintegrating membranes into lungs and airways, causing pain akin to being suffocated or drowned.”
For example, in the case of Wesley Purkey, the second person put to death in the Trump/Barr execution spree, his lawyers argued that Purkey “suffered ‘extreme pain’ as he received a dose of pentobarbital….” They claimed that he “felt a sensation akin to drowning while immobilized but conscious” during his execution. They pointed to an autopsy performed by a Michigan-based pathologist a week after Purkey was put to death. It found evidence of “severe bilateral acute pulmonary edema” and “frothy pulmonary edema in trachea and mainstem bronchi.” Dr. Gail Van Norman, a medical expert retained to interpret the autopsy, noted that the sensation caused by pulmonary edema is “among the most excruciating feelings known to man.”
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Purkey is by no means the only person to experience pulmonary edema or other problems during an execution using pentobarbital. In 2012, South Dakota put Eric Robert to death with that drug. “After he was injected, he gasped heavily, snored loudly with his eyes open, and his skin turned purple. An expert pharmacologist has described this reaction as consistent with contaminated drugs.”
A 2020 NPR review of more than 200 post-execution autopsies found signs of pulmonary edema in 84% of the cases. The findings were “similar across…different drug protocols used.”
It was found in 49 of 58 (81%) executions involving pentobarbital. That is one reason why Garland’s decision is so important.
The Justice Department review he relied on was incredibly thorough. The department “consulted with experts, including academics, medical professionals, drug safety experts, and advocacy groups…. conducted a literature review, including legal materials and medical and scientific research specifically related to the use of pentobarbital, (and) reviewed all available documentation related to prior executions using pentobarbital, including autopsy reports and witness accounts.”
One of its key findings was that “the FDA has not reviewed or approved of the use of pentobarbital in high doses or for the purpose of causing death….As a result,” it explained, “states and the federal government have not purchased injectable pentobarbital from drug manufacturers, but instead have found chemical companies that provide powdered… pentobarbital in bulk and then used compounding pharmacies to create an injectable solution.”
The FDA “does not verify their safety, effectiveness or quality before they are marketed.”
Regarding the question of whether executions with pentobarbital are painful, the department’s review was less definitive in its conclusions than the lawyers and investigators cited above. As it explained, “Based on recent medical research evaluating autopsy data from executions that used pentobarbital, information collected from autopsies conducted on two individuals recently executed by the federal government, recent witness accounts from federal and state executions, and a review of medical expert testimony in litigation,…there remains significant uncertainty about whether pentobarbital can be used in a single-drug execution protocol without causing unnecessary pain and suffering.”
In the face of such uncertainty, it concluded that the Justice Department “should err on the side of humane treatment and avoidance of unnecessary pain and suffering and cease the use of pentobarbital unless and until that uncertainty is resolved.”
To his credit, that is what Garland did. And more than that, Garland laid down a benchmark for future federal executions.
As he put it, before proceeding with any other method of execution, “the Department should… connect the same kind of evaluation of that manner of execution as was done concerning pentobarbital, with the same consideration of the risks posed by the method.”
All of that is a clear win for abolitionists in their struggles to keep Trump from getting the federal death penalty moving again.
But, beyond Garland’s recognition that no condemned person should be subject to a procedure that might not treat them “humanely,” as the AP suggests, “The government’s findings about the potential risks of unnecessary pain could have broader implications.” Legal challenges, it reports, “have been brought in several states where pentobarbital is the primary method of execution, potentially leading to reviews of execution protocols nationwide.” All Americans should hope that the AP is correct in this prediction.
In the meantime, what Garland did is an example of how seemingly small acts by one administration can make life difficult for its successor. And all Americans should be grateful to Merrick Garland for affirming that where the death penalty is concerned, there is, and can be, no room for error.
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