DOJ Considered Using Fentanyl For Federal Executions

By Paul Gaita 10/01/19

A three-page memo filed by the DOJ in 2018 discussed the potential use of the deadly synthetic opioid for death penalty cases.

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it remains unclear why the department considered fentanyl for the federal executions. © Conchasdiver | Dreamstime.com

A court filing by the U.S. Department of Justice (DOJ) revealed that the federal government actively considered using fentanyl to carry out executions of death row inmates.

The synthetic opioid—which is 50 to 100 times stronger than morphine and one of the primary causes of opioid-related overdose deaths in the United States—was considered for use in death penalty cases in a three-page memo filed by the DOJ in 2018.

The memo did not reveal why the government considered and eventually discarded the idea of using fentanyl in favor of the barbiturate pentobarbital, which Attorney General William Barr said would be used when the government announced new executions slated for later this year.

Coverage by Reuters and other sources noted that the memo was brought to light when a federal judge ordered the DOJ to show its complete "administrative record" on Barr's decision to use pentobarbital. The full contents of the memo were not made public.

Department spokesperson Wyn Hornbuckle declined to answer questions in regard to the memo, while Mark Inch, the former Bureau of Prisons' director, acknowledged that he had written the memo but also did not answer any questions about its contents, stating that it would be in conflict with his current role as the head of Florida's Department of Corrections.

A Drug Shortage & Botched Executions

Reuters and other sources also noted that the department's consideration of fentanyl might have been due to changes in the availability of drugs used for lethal injections since the last government-ordered execution in 2003.

Pharmaceutical companies have prevented the use of their drugs for execution, which has resulted in both the federal and state governments using different drugs or combinations of drugs to carry out capital punishment sentences. 

These "cocktails" have resulted in executions where the prisoners appeared to suffer physical pain. The family of a death row inmate in Ohio sued the state's director of corrections in 2014 after the prisoner appeared to struggle for air for nearly 25 minutes after receiving a mixture of benzodiazepine and hydromorphone, an opioid, while the 2018 execution of Nebraska inmate Carey Dean Moore, which used a mixture of fentanyl, potassium chloride and a paralytic, was reported by witnesses to take longer than previous executions.

Ohio Legislator Suggests Using Fentanyl Seized By Police

Despite these incidents, some lawmakers have called for fentanyl to be used in executions, including Ohio Republican legislator Scott Wiggam, who in August 2019 suggested the use of fentanyl seized by police in criminal cases for lethal injections.

The state's governor, Mike DeWine, dismissed the idea on the grounds that it would not pass "constitutional muster."

Robert Dunham, director of the Washington-based non-profit group the Death Penalty Information Center, said that he wasn't surprised that the government would consider fentanyl for lethal injections, given its prevalence in the national news. 

"But there is something fundamentally wrong about using a drug implicated in illegal activities as your method of executing prisoners," he added.

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, Amazon.com and The Los Angeles Beat, among many other publications and websites.