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January 16, 2025

AG Garland rescinds federal execution protocol citing "risk of pain and suffering" in using pentobarbital for lethal injection

Via this new substack post by Chris Geidner, I see that Attorney General Merrick Garland sent this letter to the Director of the Bureau of Prisons to order rescinding the the federal execution protocol "which provides for lethal injection of pentobarbital."  The two-page letter provides this accounting for the action:

The Office of Legal Policy has coordinated review of the [protocol] and the Department's regulations governing the manner of execution, including, as directed by the 2021 Memorandum, in "consultation with all relevant Department components, including the Bureau ofJustice Statistics, Bureau of Prisons, Drug Enforcement Administration, Civil Division, Civil Rights Division, Criminal Division, National Institute ofJustice, and U.S. Marshals Service; other state and federal agencies, including the Department of Health and Human Services; medical experts; experienced capital counsel; and other relevant stakeholders, including members ofthe public, as appropriate."   Having assessed the risk of pain and suffering associated with the use ofpentobarbital, the review concluded that there is significant uncertainty about whether the use ofpentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering.

Because it cannot be said with reasonable confidence that the current execution protocol "not only afford[ s] the rights guaranteed by the Constitution and laws ofthe United States" but "also treat[s] individuals [being executed] fairly and humanely," [2021 AG Memo on Death Penalty] at 1, that protocol should be rescinded, and not reinstated unless and until that uncertainty is resolved. In the face of such uncertainty, the Department should err on the side oftreating individuals humanely and avoiding unnecessary pain and suffering.

The 25-page report of the Office of Legal Policy serving as the foundation of this action is available at this link.

Of course, the incoming Trump Administration can and likely will reconsider these actions and institute a new (or renewed) execution protocol.  But, Prez Biden's commutation of 90%+ of federal death row left only three persons currently subject to execution and none of them has exhausted all of their appeals.  Thus, AG Garland's action may not have any immediate impact on execution possibilities, though it means some more work for any future adminstration seeking to complete any executions.

Also, because there is always considerable state-level litigation over execution protocols, this AG letter and the OLP report could prove of some consequence in some state courts.  It certainly will be cited by death row defendants seeking to preclude use of of pentobarbital in executions.

January 16, 2025 at 02:44 AM | Permalink

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