Democrats urge DOJ to rescind Trump-era opinion on execution drugs

A group of Democratic senators on Tuesday called on the Department of Justice (DOJ) to rescind a Trump-era opinion on execution drugs.

“We respectfully request that you immediately rescind the Office of Legal Counsel’s (OLC) May 3, 2019, memorandum entitled ‘Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions’ (‘OLC opinion’),” a May 12 letter from the group to Attorney General Merrick Garland reads. 

“The Department of Justice’s (DOJ) OLC opinion incorrectly found that the Food and Drug Administration (FDA) lacks jurisdiction to regulate drugs intended for use in executions,” the letter reads. “The opinion is deeply flawed — both legally and morally — and has posed unnecessary risks for individuals on death row, including the risk of suffering a botched execution.”

The group of senators who signed the letter include Sens. Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Alex Padilla (D-Calif.), Mazie Hirono (D-Hawaii), Peter Welch (D-Vt.), Amy Klobuchar (D-Minn.), Raphael Warnock (D-Ga.), Jeff Merkley (D-Ore.) and Ed Markey (D-Mass.).

“This misguided OLC opinion is inconsistent with the principles of fairness and justice, undermines drug safety, and facilitates legally dubious state execution methods,” the letter reads. “It blocks the FDA from intervening when states obtain unmarked vials from underground suppliers, inject their citizens with contaminated solutions, and cause needlessly painful deaths.”

An April report from the anti-death penalty group Reprieve found that Black inmates who are sentenced to death suffered botched procedures at higher rates versus white prisoners, with Black people having at 220 percent higher chance of suffering a botched lethal injection in comparison to white people.

“It is well-established that the death penalty is infected with racial bias at every stage of the process,” the report states. “This report reveals that the racial disparities in capital punishment extend all the way into the execution chamber.”

The Hill has reached out to the DOJ.