The Justice Department Considered Using Fentanyl To Execute Prisoners

Fentanyl in Lethal Injections Was an Option for the Justice Department

Last month, the U.S. Justice Department unsealed court documents which show that the federal government considered using fentanyl for executions. Fentanyl is a synthetic opioid which has greatly contributed to the ongoing, nationwide crisis of opioid overdoses. Although it’s an ingredient in some pain medications, fentanyl is powerful and highly addictive, and small quantities of the opioid can cause death.

In response to a judicial request for an “administrative record” on its decision to resume executions with the barbiturate pentobarbital, the Justice Department provided a federal judge a 2018 memo from the Federal Bureau of Prisons which states that the Justice Department was studying the “use of fentanyl as part of a lethal injection protocol.” On September 13, the media reported the existence of the memo, but the Justice Department has not yet published it. While we know that the Attorney General ultimately decided against using fentanyl in lethal injections, we do not know his reasons. We also do not know how the Justice Department would have obtained fentanyl, a Schedule II controlled substance.

Drugs and Capital Punishment

Earlier this year, Attorney General William Barr announced that the Federal Bureau of Prisons will resume capital punishment after an internal Justice Department review recommended that the death penalty continue, but without the traditional three-drug “cocktail” for lethal injections. The most common three-drug cocktail combined the drugs pancuronium bromide, potassium chloride, and sodium thiopental to paralyze the muscles, stop the heart, and prevent breathing, all while rendering the prisoner unconscious.

The Federal Bureau of Prisons will now conduct executions with one drug, pentobarbital, which 14 states have used to execute over 200 prisoners since 2010. The Supreme Court recently ruled that pentobarbital satisfies Eighth Amendment standards against “cruel and unusual punishment” after death penalty opponents challenged Georgia, Texas, and Missouri for using it to execute some of their prisoners on death row. In the United States, the death penalty is a legal sentence in federal courts and in thirty states for the most serious offenders, almost always convicted murderers.

Nevertheless, from 1988 to 2019, the federal government has only executed three prisoners, the last in 2003. Under the Obama administration, the Justice Department imposed a moratorium on capital punishment in 2014 after a prison in Oklahoma mishandled the execution of Clayton Lockett. Death penalty experts believe that the federal government decided to change the drugs that it uses for executions because the three-drug cocktail may cause excessive suffering and chemical manufacturers are increasingly unwilling to supply its ingredients. Pentobarbital causes death by overdose, effectively disabling a person’s nervous system, which might be more efficient and less painful.

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Fentanyl in Executions at the State Level

Fentanyl also causes death by overdose, and in at least two states, Nebraska and Nevada, fentanyl is part of the lethal injection protocol. Since lawsuits have so far prevented Nevada from executing anyone with fentanyl, only Nebraska has used the opioid to carry out a death sentence. In 2018, Nebraska executed Carey Dean Moore at a state prison in Lincoln. Moore was convicted of double homicide and sentenced to death in 1979, and his execution was the first in American history to involve fentanyl, albeit only as one ingredient in a lethal drug mixture. The drug that actually stopped Moore’s heart was most likely another ingredient, potassium chloride.

Robert Dunham, executive director of the non-partisan Death Penalty Information Center, suggested that Nebraska used fentanyl because the state encountered difficulty with obtaining other drugs for a lethal injection.

There’s no particular reason why one would use fentanyl. No one has used it before, and we’ve had hundreds and hundreds of executions by injection. That suggests that the state is using fentanyl because it can get its hands on it.

Scott R. Frakes, the director of Nebraska’s Department of Correctional Services, admitted to this in an affidavit: “Lethal substances used in a lethal injection execution are difficult, if nearly impossible, to obtain.” Like the federal government, states are struggling to find companies that will sell them drugs for executions. In Ohio, the problem is so serious that lawmakers began debating last month whether their state should carry out executions with fentanyl confiscated from drug traffickers by the police.

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