The Federal Government Drops* Pentobarbital, as Several States Pick It Up

Attorney General Merrick Garland announced Thursday that, following a review of the federal government’s execution protocol by the Department of Justice, it would rescind its order that the barbiturate pentobarbital be used in federal executions. Garland ordered a review of federal execution protocol upon taking office in 2021; that review was published at roughly the same time.

Garland’s timing is interesting, both for its intent and by coincidence. Today marks the last business day of the Biden administration, and Garland has already delivered his farewell address. While the Attorney General has hardly been abolitionist in his time as AG, the move seems calculated to at least provide speed bumps before Trump carries out his promise to resume executions. It comes on the heels, however, of several state decisions to go full speed ahead: Indiana used pentobarbital to restart capital punishment after a delay of more than 15 years, with Tennessee announcing it will do the same in place of its existing three-drug protocol; Arizona canceled a similar review of its pentobarbital-based protocol last month.

Pentobarbital: The Preferred Choice of Executioners

Pentobarbital has a long and complicated history in lethal injections of all kinds: it’s long the preferred sedative in animal euthanasia and chemically very similar to the drug used in the first coordinated lethal injection scheme (the Nazis’ Aktion T4 euthanasia program). In a 2006 report, Human Rights Watch even took the unusual step of recommending pentobarbital, if executions must take place, to replace the three-drug protocol then standard. While HRW noted that states, at the time, balked at experts’ inability to guarantee fast executions, the loss of sodium thiopental from the American pharmaceutical market ultimately forced many of them to make the change. According to the Death Penalty Information Center, the majority of states actively conducting or planning executions have a single-drug pentobarbital protocol, with several others using it to replace thiopental in a three-drug cocktail. And when Trump Attorney General William Barr wanted to restart federal executions (dormant since before the end of thiopental), it was pentobarbital he turned to.

The rosy picture painted by pentobarbital, meanwhile, seems to have been a mirage. A pre-print by Emory anesthesiologist Joel Zivot, et al, found that while autopsied subjects of single-drug pentobarbital executions produced less pulmonary edema (fluid in the lungs) and froth in the trachiobronchial tree (an indication subjects were still struggling to breathe), both were still present in 66% of the sample.

The DOJ Review Is Surprisingly Thorough and Shockingly Decent

As the review notes, the Supreme Court has never struck down a method of execution as violating the Eighth Amendment; however, Garland made clear in his announcement of the project that:

While Garland finds himself in a rare position—reviewing an execution protocol while being, if not an abolitionist, at least not actively seeking to justify it—it’s rare to see documents like these that set a higher bar for themselves than the minimal and ever-shrinking requirements set by case law. That spirit continues throughout the document: it’s one of the most painstaking self-examinations of an execution protocol I’ve ever seen.

According to the review, the Bureau of Prisons developed its protocol based on a 550-word report from a non-physician professor of pharmacology and a an anesthesiologist who verbally “concurred;“ the written report promised unconsciousness with “10 to 30 seconds“ but cited no sources. The BOP then reached out to a compounding pharmacy (later revealed to be Connecticut-based Absolute Standards), a business that builds custom drugs from pharmaceutical ingredients but faces less rigorous regulation (and, as a class, suffers significantly more drug quality problems) than typical pharmacies.

In addition to Zivot’s study, the report cited coauthor and pathologist Mark Edgar’s testimony before the Montana legislature, claiming “evidence of prisoners developing acute and severe pulmonary edema...in both pentobarbital and midazolam executions…produc[ing] sensations similar to drowning or asphyxiation as fluid occupies a greater volume of the air spaces.” Anesthesiologist Gail Van Norman further testified to the federal government that its protocol would “subject executed prisoners to severe pain and suffering, when they remain conscious and aware prior to their deaths…particularly if extravasation [where IV fluid leaks from the veins] or infiltration of the peripheral IV catheter occurs, or if inadvertent intra-arterial injection occurs.” The latter is especially a concern given the consistent problems executioners have shown in securing IVs. The review also includes several witness statements, which provide “important anecdotal evidence“ to flesh out the lack of research inherent in capital punishment (which both kills the subject and flagrantly violates principles of institutional review).

The study concludes by raising a fundamental question, and one neither legitimate medicine nor the killing state can answer: how unconscious is unconscious? Noting that the question of whether a sedated person can feel the effects of a procedure “remains debated even within clinical settings involving anesthesia,” it quotes a recent paper in Anesthesia on the three levels : “there are no reliably tested indices that can discriminate between connected consciousness, disconnected consciousness, and complete unconsciousness.” Citing this uncertainty, the review ultimately recommends that the federal government “cease the use of pentobarbital.“

The Order’s Practical Effects Remain Unknown

There’s a natural question of whether this is too little, too late. Garland is famously out of a job on Monday; the Trump administration’s pick for his replacement has a track record of readiness to use every inch of the extreme latitude the Roberts Court has granted executioners. Garland’s order also doesn’t include any provision about existing supplies of pentobarbital; assuming there’s no undisclosed to that effect, Garland is saving Pam Bondi the trouble of finding a new supplier after Absolute Standards backed out. However, for the three remaining federal death row inmates after Biden’s commutations, the need for a new protocol may raise an important avenue for litigation. I noted at the time that normal postconviction litigation timelines made it far from certain Trump would get to execute any of the three; Garland’s actions may buy all of them time to the next administration.

1  Here, “connectedness“ refers to the ability to process information from the outside environment.