CREW is suing the Department of Justice for its failure to provide records on the procurement of a death penalty drug to be used in federal executions.
In early August 2019, CREW sent two FOIA requests to DOJ and the Bureau of Prisons requesting records relating to the procurement of Pentobarbital for executions. DOJ has yet to respond to the request, while the BoP has claimed all responsive documents are exempt from disclosure in their entirety.
For nearly two decades, the federal government has prohibited the use of capital punishment. However, on July 25, 2019, DOJ filed an addendum to the Federal Bureau of Prison’s execution protocol allowing the use of pentobarbital as the lethal agent in federal executions. On the same day, Attorney General William Barr directed BoP to adopt the addendum which “closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas.”
A closer look at execution procedures in the states from which the addendum claims to draw influence shows an alarming number of roadblocks that states routinely face in even procuring the drug. In Texas, obtaining pentobarbital in executions is increasingly difficult since the manufacturer of pentobarbital requires distributors to sign agreements saying they will not sell the drugs to death penalty states. Consequentially, states have obtained alternative non-FDA approved drugs whose degredation over time risks painful death, which could constitute torture.
CREW’s current lawsuit follows the 2nd Circuit’s recent decision to halt four federal executions on the basis that the Attorney General does not have the authority to unilaterally decide to use pentobarbital in all lethal executions. Barr’s apparent failure to recognize this fact indicates that he formulated the new policy without regard for its legality. CREW’s lawsuit is crucial for establishing whether DOJ considered other legal risks associated with pentobarbital and the procurement process it used to acquire a drug that is notoriously difficult to obtain.