Exclusive: A.G. Garland withdraws federal execution drug protocol following review
"[T]here is significant uncertainty about whether the use of pentobarbital as a single-drug lethal injection for execution treats individuals humanely," Garland wrote.
Attorney General Merrick Garland ordered the head of the Bureau of Prisons to withdraw the federal government’s current execution drug protocol, leaving the federal government with no drug protocol in place to carry out executions.
The current drug protocol, the use of pentobarbital in a single-drug lethal injection, was last used to carry out executions in the first Trump administration.
After a multi-year review ordered in 2021, the Department’s Office of Legal Policy concluded — and Garland echoed — that there is “significant uncertainty” surrounding the use of pentobarbital that justifies withdrawing the protocol authorizing it.
“[T]he review concluded that there is significant uncertainty about whether the use of pentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering,” Garland wrote Wednesday in a letter to the director of the Bureau of Prisons. Writing that “it cannot be said with reasonable confidence” that the pentobarbital protocol protects “the rights guaranteed by the Constitution and laws of the United States" and ensures that those facing execution are treated “fairly and humanely,” the attorney general concluded “that protocol should be rescinded, and not reinstated unless and until that uncertainty is resolved.“
Although the underlying statutes authorizing executions, as well as the federal rules regarding the manner of execution remain in place, Garland’s action would force additional steps on the incoming Trump administration before it could carry out any executions.
The move to rescind the execution drug protocol comes a few weeks after President Joe Biden commuted the death sentences of all but three men on the federal death row to life in prison without the possibility of parole in the days before Christmas.
The earlier years of the administration presented a more mixed record from the Justice Department, with Garland authorizing continued and new capital prosecutions.
In all, though, it is a striking record of opposing capital punishment and doing significant work to end the federal death penalty, as I called for here in recent months — and as candidate Biden pledged to do when running for office in 2020.
Back in July 2021, Garland issued an execution moratorium following the 13-person execution spree carried out in the closing year of the first Trump administration. At that time, he also ordered a review of the federal government’s execution protocol and procedures — something previously undertaken in the Obama administration with no resolution.
This time, however, the review was concluded — on Wednesday, according to Garland’s letter and a a report provided to Law Dork via Chris McDaniel, who received it on Wednesday night from the Justice Department. My former colleague from BuzzFeed News, McDaniel now works at Last Week Tonight with John Oliver, where he conducted an investigation that led to the show’s incredible report on where the Trump administration obtained its execution drugs.
After detailing the first Trump administration’s authorization of the use of pentobarbital in a “federal execution protocol addendum,” Garland noted, “The then-Attorney General ordered the Bureau of Prisons to adopt the addendum on July 24, 2019. Following the adoption of the addendum, 13 federal executions took place between July 2020 and January 2021.”
Biden then took office, Garland ordered the review, and the Office of Legal Policy provided its report this month.
Regarding the use of pentobarbital in a single-drug lethal injection, the report addressed four areas of concern, first asserting that “there is a risk of flash (acute) pulmonary edema with the use of pentobarbital in executions.” Specifically, it added, “Two autopsies were conducted after recent federal executions with pentobarbital, and both showed signs of pulmonary edema.”
Second, it noted that “experts have warned that the use of high amounts of pentobarbital in a single-drug execution protocol could cause extreme pain upon the initial injection.”
Third, the report highlighted the “greater significance” of eyewitness accounts in this area:
![In light of the limited research and unanswered questions about the risks of pulmonary edema and pain associated with lethal injection by pentobarbital, witness accounts take on greater significance and provide important anecdotal evidence. Witness accounts from the 13 federal executions using pentobarbital are particularly relevant.105 In February 2021, AP News reported that “executioners who put [those] 13 inmates to death in the last months of the Trump administration likened the process of dying by lethal injection to falling asleep…but those tranquil accounts are at odds with reports by The Associated Press and other media witnesses of how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect inside the U.S. penitentiary death chamber in Terre Haute, Indiana.” 106 During the execution of Alfred Bourgeois in 2020, witnesses reported that he “grimaced and furrowed his eyebrows. He began to exhale rhythmically, and his stomach started to quiver uncontrollably.”107 It was observed during Lezmond Hall’s execution in 2020 that his “chest heaved” and his “stomach area began to throb.”108 Similarly, in 2020, witnesses reported that William LeCroy’s “midsection quickly began to heave uncontrollably” after the pentobarbital was administered.109 In addition, in 2020, eyewitnesses observed that as the drug was administered to Orlando Hall, he “appeared to wince briefly and twitched his feet...open[ing] his mouth wide, as if he was yawning…[e]ach time that was followed by short, seemingly labored breaths.”110](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F07d7a07d-26e7-4c92-a8d8-2972e1db5953_1692x850.png "In light of the limited research and unanswered questions about the risks of pulmonary edema and pain associated with lethal injection by pentobarbital, witness accounts take on greater significance and provide important anecdotal evidence. Witness accounts from the 13 federal executions using pentobarbital are particularly relevant.105 In February 2021, AP News reported that “executioners who put [those] 13 inmates to death in the last months of the Trump administration likened the process of dying by lethal injection to falling asleep…but those tranquil accounts are at odds with reports by The Associated Press and other media witnesses of how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect inside the U.S. penitentiary death chamber in Terre Haute, Indiana.” 106 During the execution of Alfred Bourgeois in 2020, witnesses reported that he “grimaced and furrowed his eyebrows. He began to exhale rhythmically, and his stomach started to quiver uncontrollably.”107 It was observed during Lezmond Hall’s execution in 2020 that his “chest heaved” and his “stomach area began to throb.”108 Similarly, in 2020, witnesses reported that William LeCroy’s “midsection quickly began to heave uncontrollably” after the pentobarbital was administered.109 In addition, in 2020, eyewitnesses observed that as the drug was administered to Orlando Hall, he “appeared to wince briefly and twitched his feet...open[ing] his mouth wide, as if he was yawning…[e]ach time that was followed by short, seemingly labored breaths.”110")
Finally, the report highlighted the distinction between “consciousness” and “responsiveness.” Disturbingly, but in fitting with many of the questions raised by those witness reports, the report stated, “It is not clear whether a person who receives 5 grams of pentobarbital can feel and experience the impact the drug has on the body.” It is possible, it noted, that “the drug leaves a person in a state of connected consciousness, in which they may or may not be physically responsive to pain of pulmonary edema but are experiencing that pain.”
In addition to rescinding the current protocol, Garland put in place — for now, at least — a process for considering any other protocol.
“I further direct the Director [of the Bureau of Prisons] to assist the Office of Legal Policy, under the supervision of the Deputy Attorney General, to conduct evaluations of any other manner of execution, and of the State or local facilities and personnel involved in any such execution, before such other manner may be implemented,” he wrote. As such, Garland ended his memorandum by noting that “the moratorium on federal executions announced on July 1, 2021, remains in effect.”
For now, then, federal executions remain on hold.
Donald Trump takes office in four days.
Thank you for this post. I believe that trump is one of those people who enjoys knowing that he is inflicting pain and death on others from a distance with no risk to himself. He really got off on ordering the dropping of the Mother of all Bombs on the airport in Syria, however much he cried crocodile tears about saving the children. Likewise, shoot them in the legs and one night of carnage stand out but I am sure there are and will continue to be other sick comments.
Thank you. Good to hear details of the final actions of the administration.