Sens. Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.) on Tuesday called on the Biden administration to regulate lethal injection drugs, arguing the difficulty in ensuring such drugs are safe has led to botched executions.
The letter from the senators was addressed to Attorney General Merrick Garland, Food and Drug Administration (FDA) Commissioner Robert M. Califf and Drug Enforcement Administration (DEA) Administrator Anne Milgram.
The senators express particular concern over the racial disparities in botched executions.
Black people on death row have a 220 percent greater chance of suffering a botched lethal injection execution than white people.
“The FDA and DEA have the regulatory authority to prevent the procurement of dangerous, low-quality drugs from secretive suppliers with a history of regulatory infractions,” the letter reads.
Although lethal injection is the most common method of execution, the senators point to a study released earlier this year attributing botched executions to a variety of factors, including secrecy, illicit drug procurement, poor quality drugs and haste.
“We need to end the death penalty once and for all,” Warren said in a statement to The Hill. “But as long as it exists, the federal government should at the very least regulate lethal injection drugs to minimize the risk of botched executions and to protect the safety of the public’s drug supply chain.”
The letter follows a May letter calling on the DOJ to rescind the 2019 Office of Legal Counsel opinion that the FDA does not have the ability to regulate drugs intended for use in executions.
“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 letter said.
Wednesday’s letter highlights issues with companies that provide the lethal drug concoction.
Rite-Away Pharmacy in San Antonio, for instance, which supplied lethal injection drugs to the state of Texas, has a history of citations for safety and cleanliness violations, including a failure to maintain sterile conditions and improper record-keeping, the letter said.
During delivery of the drugs to Texas execution sites, the legislators said, the small, closely guarded delivery team was subject to minimal oversight.
Meanwhile, another branch of the same pharmacy had previously been sued by the federal government for dispensing medications without valid prescriptions, falsifying records and providing high doses of fentanyl without a legitimate medical purpose.
The legislators argue Texas is not the only state to engage with pharmacies with dubious histories.
A recent report by The Associated Press found Utah had considered using ketamine along with fentanyl for an upcoming execution if unable to obtain the common execution drug pentobarbital.
If authorities were to go through with the plan, Utah would be the first state in the country to use ketamine in an execution and would experimentally combine it with fentanyl and potassium chloride.
The individual slated for the execution has argued that this combination could cause severe pain “mental anguish.”
In the letter, legislators say Utah has revealed little about how the state is procuring the fentanyl and ketamine, or how it plans to safeguard the drugs from leaking from the state’s supply chain into the public.
“Just as the DEA and FDA regulate other drugs, these agencies have a responsibility to regulate drugs intended for executions,” Warren told The Hill.