The Trump administration was in such a rush to execute people that it sought to enter into a no-bid contract with the seller of the drug used in the lethal injection, according to new documents obtained by CREW.
In its “Justification for Other than Full and Open Competition,” BOP laid out its “urgent and compelling need” for pentobarbital, a drug that is notoriously difficult to obtain and that can lead to a painful or torturous death if formulated incorrectly. BOP wrote that “the Bureau has and [sic] immediate need for this product and failure to procure the item in a timely manner could result in delays that would be detrimental to the operations of the agency.”
To justify its departure from the standard procurement process, BOP invoked a legal exception that only applies “when the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured” if it wasn’t allowed to limit the number of contract bids.
“Rather than let litigation run its full course which could potentially allow some inmates on death row to die of natural causes, DOJ seems to argue that it needed drugs to execute people as quickly as possible.”
BOP’s filing also suggested that the agency needed the drug quickly so that it could conduct executions before prisoners on death row naturally reach the end of their sentences: “Because of current number of inmates with capital sentences and the likelihood of many of these sentences coming to conclusion, delay of this acquisition could result in the inability of the 98agency to accomplish its duties.” Further, BOP wrote that “Failure to efficiently and effectively execute sentences could also potentially subject the agency to legal liability.”
Let that sink in: rather than let litigation run its full course which could potentially allow some inmates on death row to die of natural causes, DOJ seems to argue that it needed drugs to execute people as quickly as possible so that the government could kill them first.
Since then, DOJ has continued full steam ahead despite public resistance and legal challenges, and conducted its business largely in the dark. So far, eight people have been executed since the Trump administration resumed the federal death penalty in July, and five more executions are scheduled before the start of the Biden administration. Rushing these executions in a pandemic has made matters worse: only two of the first seven men put to death had their attorneys present at United States Penitentiary, Terre Haute, where executions are being held, during their execution. At least 19 BOP staff and prisoners have contracted COVID-19, as well as two lawyers representing Lisa Montgomery, who is scheduled to be executed on December 8th (a judge has temporarily halted the execution in response). Documents obtained by the ACLU show that the rush of executions likely caused a COVID-19 spike. In July, the ACLU sued to delay the executions, arguing that they were superspreader events. DOJ proceeded anyway.
CREW sued DOJ and BOP for records detailing whether the agency considered the legal risks associated with pentobarbital and the procurement process it used to acquire the drug in December 2019. Thus far, any information about the plans, including the identity of the manufacturer or the cost to taxpayers, is redacted. CREW’s litigation with the agency remains ongoing.
Trump’s DOJ, and his administration more broadly, will undoubtedly be remembered for its lack of transparency, political self-service and recklessness. Their push to resume and carry out executions—starting with a rushed and secretive contracting process and ending with COVID-19 spikes—embodies why those characteristics are so dangerous. DOJ has serious, literal life and death questions it needs to answer.