April 09, 2021

Questions Raised about Transparency Regarding Lethal Injection Protocol

By Samantha O'Connell, DPRP Intern

In July 2019, the Department of Justice (“DOJ”) announced it would resume federal executions for the first time since 2003, performing lethal injections with the drug pentobarbital alone. It faced extensive litigation about whether the revised execution protocol would subject condemned prisoners to cruel and unusual punishment in violation of the Eighth Amendment.

Throughout the federal execution spree, the government presented accounts from Bureau of Prisoners (“BOP”) executioners in court proceedings as evidence that the lethal injections under the new drug protocol proceeded smoothly with no signs of distress from the prisoners. However, the Associate Press later claimed that these statements were “sanitized” accounts of what their own reporters witnessed. While federal executioners consistently recounted the prisoners drifting into a tranquil sleep, the AP’s reports of the executions by lethal injection used far less peaceful descriptors.

For instance, in legal documents filed in response to prisoners’ lethal injection challenges, executioner Eric Williams wrote that “during the entirety of [William LeCroy’s] execution, LeCroy did not appear to be in any sort of distress, discomfort, or pain…A short time after he took a deep breath and snored, it appeared to me that LeCroy was in a deep, comfortable sleep.”

According to AP witnesses, though, LeCroy’s stomach began to “heave uncontrollably” immediately after the pentobarbital injection, and AP reporters noticed this type of spasming occurring in at least half of the thirteen federal executions. The journalists did not have access to live audio from the death chamber, so they had no way of knowing if the prisoners expressed feelings of pain out loud. In the opinion of the medical experts for the prisoners, however, the abdominal heaving was consistent with pulmonary edema, a phenomenon that would elicit a feeling of drowning or suffocation. In fact, a National Public Radio review of more than 200 prisoner deaths by lethal injection conducted in September 2020 identified evidence of pulmonary edema in more than 84% of cases, including in lethal injection deaths by pentobarbital.

An expert hired by the DOJ in the course of the litigation over the lethal injection protocol pushed back on the prisoners’ pulmonary edema claim in an October filing, referencing executioners’ testimony as proof that LeCroy’s breathing was not irregular or pained. According to the government’s expert witness, Kendall Von Crowns, what reporters witnessed was simply LeCroy’s “hyperventilation due to the anxiety associated with his impending death,” not the rushing of fluid into his lungs or airways. Von Crowns, however, did not witness the executions in question. AP reporter Michael Tarm, who witnessed all 13 federal executions, refuted this explanation, writing, “All the journalist reports said the movements happened within minutes of injections, never in the minutes before an inmate was pronounced dead.” 

In the opinion of the Associated Press, the major discrepancies between the media and the government’s accounts “raise questions about whether officials misled courts to ensure the executions scheduled from July to mid-January were done before death penalty opponent Joe Biden became president.” 

In response to what he called the “generally truth-impaired descriptions of events the Bureau of Prisons and Department of Justice offered throughout the execution spree,” Robert Dunham, Executive Director of the Death Penalty Information Center, believes the Biden administration ought to take concrete action. "The new administration should investigate the conduct of BOP officials regarding the executions, correct the record so the public is provided truthful information about what actually happened, and hold accountable federal officials who engaged in improper conduct during the executions.” 

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.