Attorney General William P. Barr has already picked out the five prisoners on death row to be scheduled for lethal injection, ending the federal government’s 16-year moratorium on the death penalty. He also announced that to do so, the government will use a lethal injection drug known as pentobarbital.
This is significant because there is only one manufacturer approved by the Food and Drug Administration to sell the chemical, which is most typically used to euthanize animals: Akorn Pharmaceuticals. Akorn, like most drug manufacturers, is staunchly opposed to letting its products be used for lethal injection in humans.
So how is Barr going to get the pentobarbital executioners will need? Almost assuredly the same way that states such as Texas and Missouri have been obtaining the drug ever since its manufacturer stopped selling it for the purpose of execution in 2011: through facilities known as compounding pharmacies, which can produce drugs without the oversight of the FDA.
The names of these companies are always entirely hidden from the public. State governments who want access to pentobarbital, which does not have a long shelf life and must be produced specifically for executions, must promise the compounding pharmacies that produce it for them to shield their identities so that the companies will be protected from public retaliation after participating in the execution. Nor will the public know if the products are actually safe to use. In previous instances, condemned inmates reportedly complained of burning sensations after the poorly regulated sedatives were injected.
In fact, the lack of transparency is key to Barr’s new protocol. As the Justice Department said in a notice of the new policy: “The identities of personnel considered for and/or selected to perform death sentence related functions, any documentation establishing their qualifications and the identities of personnel participating in federal judicial executions or training for such judicial executions shall be protected from disclosure to the fullest extent permitted by law.”
This is a blunt effort to sanitize the machinery of death. Our lethal injection regime is intended to provide the illusion that we can carry out capital punishment in a humane way, but we deny ourselves the full transparency that would help us understand if that is true. And while a slim (and shrinking) majority of the public might support the death penalty, that margin depends on the policies that keep the details of capital punishment and the identities of the executioners shrouded in secrecy.
This is an exception to the history of the death penalty. Hollywood likes to depict the executioners of old as protected by anonymity — veiled in a black hood so they could carry out gruesome duties no one else wanted to do. But in reality, executioners of earlier centuries, such as the infamous Sanson family in Paris during the French Revolution, were widely known — and reviled by the public. They lived as outcasts in perpetual shame for carrying out the orders of tyranny.
Over time, that shame evolved into political action, and societies across the world have excised the evil of capital punishment from their criminal-justice systems. What does it say about our country that we shield our practitioners from such shame? It suggests that we know this work is indefensible: We need private companies to operate our supply chain of death, and the only way we can convince them to take part is to spare them social or moral accountability.
As an essential component to our health-care system, drug manufacturers have no way to justify taking part in a system that is the antithesis of health care. This is why essentially no manufacturer does so publicly and why the American Medical Association forbids physicians from participating in executions.
Even for the worst criminals in society, we should demand more transparency. If the government wants to execute people, it should do so without the hoods — or not at all.