Many of the details surround the use of the pentobarbital, pressed into service after drug companies refused to provide the multiple array of drugs previously used for state and federal executions, including sodium thiopental, pancuronium bromide and potassium chloride.
Those drugs were designed to sedate and render unconscious the condemned, theoretically reducing the pain when the final fatal dose was administered. Not so pentobarbital, which is a sedative that slows the activity of the brain and nervous system and is often used to euthanize pets.
The use of pentobarbital was not seen by DOJ as a problem: “Since 2010, 14 states have used pentobarbital in over 200 executions and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment,” it said.
Other experts were not convinced. “Nobody knows if the pentobarbital that the government has obtained will address the serious risks that individuals across the country are facing of being tortured to death through lethal injection,” stated Sam Spital, director of litigation for the NAACP Legal Defense and Educational Fund.
Others were skeptical of the origin or quality of the drug, and the secrecy surrounding its use in the current round of executions. According to Ruth Friedman, director of the Federal Capital Habeas Project: “We have no idea if it’s imported, we have no idea if it’s compounded or manufactured. There’s no way to know,” she said. “That was a calculated decision.”
The official accounts put forth by DOJ regarding the executions likening the prisoner’s reaction as “snoring,” was in marked contrast to those submitted by the AP. Its reporters witnessed every execution, and reported that it appeared that prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect after being administered in the death chamber in USP Terre Haute, Indiana.
This question of whether prisoners’ midsections trembled was cited by defense lawyers as proof that pentobarbital caused flash pulmonary edema. This causes fluid to rush to the brain and the lungs, producing a sensation of suffocation or drowning. The stomach movement was noted in approximately half of the executions, but none of the prisoners were reported to have writhed in pain. However, there was no audio of any executions, and official accounts of the federal executioners did not disclose any heaving of the stomach or midsection.
Federal District Court Judge Tanya Chutkan, who presided over a death penalty case, issued a ruling in a September 2020 decision, where she noted conflicting witness and expert testimony, and the 2019 Supreme Court’s ruling in favor of the government’s death penalty rights, stating, “While the court continues to be concerned at the possibility that inmates will suffer excruciating pain during their executions,” defense attorneys “have not established that flash pulmonary edema is ‘certain’ or even ‘likely’ to occur before an inmate is rendered insensate.”
President Joe Biden long supported the death penalty but says he now opposes it, and he could halt any further executions for the 65 federal prisoners still on death row with the stroke of a pen.
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