If She Wins, Kamala Harris Should End Trump's Dishonest Execution Drug Policy
A facially absurd DOJ opinion makes lethal injection easier.
While the federal government has only carried out around 1% of post-Furman1 executions, federal policy plays a significant role in how capital punishment plays out. SCOTUS has essentially guaranteed that death sentences will end up in federal court since 1976; Congress, since 1995, has made it harder for those appeals to succeed. With the rise of longtime state homicide fan Donald Trump, however, the federal government’s role in capital punishment escalated: after rescinding an Obama-era moratorium, Trump’s administration performed 13 of the 16 post-Furman federal executions, with plans to expand its use even further. While a Democratic administration couldn’t unilaterally end even the federal death penalty, a President could with a “signing of autographs” severely frustrate both state and federal attempts to impose it. By that measure, it’s hard to view this century’s Democratic Presidents as anything but disappointments.
Joe Biden’s Broken Death Penalty Promises
While Barack Obama paid lip service to consider the ethical problems posed by capital punishment, Joe Biden appeared serious about promises to “eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.“ Abolitionists were skeptical—Biden had authored previous bills reintroducing the death penalty and voted the the Antiterrorism and Effective Death Penalty Act, which severely cut access to justice for people on death row—but one could be forgiven for a little hope. Biden’s decades-long legislative career read like a tailor-made proxy for the median Democratic voter, and recent polling suggested the party had abandoned capital punishment.
These hopes went mostly unfulfilled. While the Biden Administration implemented a moratorium on executions and retracted former Attorney General Bill Barr’s streamlining of the death penalty, he has done nothing to prevent the same whirlwind should Trump take office next year. The federal execution chamber at Terre Haute remains in working order, and Biden has not issued even one of the 44 death row commutations within his unquestionable power. Indeed, that list has grown by one under his watch: after a spotty record pursuing and declining death penalty prosecutions, the Justice Department secured a death sentence for Tree of Life shooter Robert Bowers. Attorney General Merrick Garland even signed off on seeking the death penalty for Buffalo supermarket shooter Payton Gendron despite local community condemnation, and the Department continues to defend the death sentences of Boston bomber Dzhokar Tsarnaev and Charlotte shooter Dylann Roof despite vocal opposition from victims’ family members.
The Justice Opinion That Keeps Executions Humming
While it’s disheartening to watch the President’s heel turn on federal capital punishment, his inaction on the Trump Justice Department’s little-known opinion on execution drugs has been far more insidious at the state level.
The sedatives used in lethal injection are controlled substances, meaning that the DEA and FDA impose tight controls on how they’re imported, handled and used. When thiopental, the original lethal injection sedative, became unavailable in the North American market, prison officials ran into the business end of these controls. In many cases, states began using dodgy drug resellers (one operating from the back room of a driving school in London) to import drugs from abroad—triggering Food and Drug Administration regulations on chain of custody, adulteration concerns, and more, and leading to the seizure of thiopental ordered by three states and a halted import from India by another.
Then came Bill Barr. A staunch proponent of capital punishment, Trump’s second Attorney General ushered in a wave of changes designed to make executions easier. While most of these procedural changes dealt with the federal death penalty, Barr also commissioned an opinion from his Office of Legal Counsel that execution drugs were “devices,“ not drugs, and therefore not subject to the FDA’s oversight when used in homicides.
It’s difficult to see the opinion as anything other than results-oriented thinking. Author Steven Engle compares lethal injection drugs to guns, cassette tapes, hot tubs, treadmills, and more—but can’t think of a single intravenously administered “device.“ He claims the different treatment of “chemically identical“ medical and industrial gases justifies this approach, apparently unaware that the different regulatory schemes means the products are chemically identical in name only. He gestures to “off-label uses“ of medicine as a supposed justification, eliding that these still require a prescribing physician, not merely a present one.
It can’t be said, however, that the opinion is completely dishonest. Engel quotes the controlling Bucklew and Glossip opinions, and he follows the logic seen in the latter’s oral arguments: if drug importers for lethal injection had to play by the same rules as for any other use, lethal injection would just be too darn hard.
This principle of federalism provides further support for the conclusion that the FDCA2 should not be read to regulate—and therefore, effectively prohibit—the States’ administration of capital punishment.
The opinion threw the door wide open for both the secret import of drugs and the use of compounding pharmacies, lightly regulated outfits that make custom drugs to order. Sometimes, prison officials can’t even be bothered to make that much effort: Absolute Standards, a Connecticut-based lab chemical company, produced pentobarbital for the federal government’s one-drug protocol despite a lack of federal government approval.
Tainted supply problems aren’t limited to the execution chamber, either. A group of pharmacists wrote a brief in Bucklew attesting that there is essentially no way an illicit drug import channel can control the products and customers engaged with it. While lethal injection drug quality is a state secret, we know that execution drugs have both arrived tainted and escaped into the consumer drug supply.
Potential President Harris Should Revoke the Opinion—And She Shouldn’t Stop There
Harris doesn’t have a perfect record on capital punishment—she avoided pursuing it as a San Francisco prosecutor but defended California’s effectively dead-letter capital punishment statute as Attorney General. Call it naivete—or the specter of the Executioner-in-Chief—but I’d like to imagine what can be, unburdened by what has been.
In addition to appointing agency heads who will reverse Trump and Barr’s federal death penalty fast track, here are several meaningful steps she could take to hamstring the death penalty at the state level:
Rescind Engle’s OLC opinion and restore obvious oversight requirements for drug imports.
Clarify that prison officials who handle controlled substances for use in executions are subject to FDA and DEA regulations on their possession, manufacturing and storage.
Expand the FDA’s oversight of compounding pharmacies, both for consumer protection and to undercut prison officials’ flagrant violation of pharmaceutical companies’ unwillingness to collaborate.
Expand previous regulation of execution drugs to medical gases, limiting states’ ability to seek lower-quality industrial gas providers when major medical gas sellers decline to participate.
None of this will lead to abolition overnight, and state officials have shown ghastly ingenuity at circumventing wrenches in the machinery of death. What it could do is force them into legalizing less faux-polite methods, triggering the public revulsion that precipitated the last wave of abolition.
At the end of the day, though, I’m not sure it matters where it might lead. At the end of a long string of broken promises, I’m getting tired of trying to persuade “the right side of history” to do what it should have done years ago.
The American death penalty is largely talked about in the context of 1972’s Furman v. Georgia Supreme Court decision, which outlawed capital punishment until more rigorous sentencing guidelines were instituted. The Court would approve several such guidelines in 1976’s Gregg v. Georgia.
Federal Drug Control Act.