How the FDA’s drug regulations may mean the death of capital punishment.
original post date: April 6, 2011
Last month, Eric John King was put to death in Florence, Arizona, for committing a double homicide during a convenience store robbery gone wrong. As is their duty, King’s attorneys worked every last angle in an attempt to spare their client the ultimate punishment. As the burden is on the state to execute people by the book, so much of the legal jockeying is less focused on proving innocence than snagging the process in the bramble of regulation surrounding capital punishment. It may come as a surprise to note that, even in the world of executions, some of those regulations came from the FDA.
The majority of states in the US practice capital punishment, and all of them that do use lethal injection as their primary method. Most of these states use a method of injection that requires drugs that are becoming increasingly difficult to obtain legally, and as a result, incidents are cropping up in which the drugs’ origins are being called into question. These questions involve complex rules, licenses, and procedures that, in the end, are designed to keep us safe from harmful substances. In a great irony, these rules are proving tight enough to keep even the condemned from injections that—to put it mildly—may be hazardous to their health.
The Arizona Republic for example, recently reported that one of the drugs used in Arizona executions had been labeled for animal use. The furor over this died as it was found to be a clerical error, but the incident shows how touchy and intricate death penalty drug issues can be.
Arizona, along with all but three states that perform lethal injections, uses three drugs to execute prisoners. Sodium thiopental is used as an anesthetic—outside of an execution chamber, it has been used to induce coma. Pancuronium bromide, a muscle relaxant, paralyzes the prisoner. Potassium chloride is the third drug, administered to induce a severe case of hyperkalemia, an excess of potassium, which prevents the heart muscle from contracting. The anesthetic, sodium thiopental, is no longer produced in the United States at all, causing a problem for any three-drug execution state.
How do the prison systems get around this? By importing it from other countries—and from domestic labs with inexplicable surplus. Kentucky, for example, contacted a pharmaceutical company in India, then obtained a supply from an entity in the state of Georgia. The legality of both their contact with the Indian company and the manner in which the Georgia group came to be in possession of the drug are being questioned by public defenders.
Another public defender, Dale Baich of Phoenix, called for a Justice Department probe after Arizona got its supply from Dream Pharma in the UK. The company “appears to be a closely held corporation run by a husband and wife. According to press reports, the entire operation is run out of the back of a West London driving school,” says Baich in a letter to the DOJ. In November of last year, Britain shut down its export of sodium thiopental for non-medical purposes. Baich’s letter to the DOJ indicates that Arizona obtained the drug in September, before the ban was instated. By now, you may be asking questions as to why the DOJ would want to get involved—it doesn’t look like anything clearly illegal has taken place.
The answer? It’s all about the paperwork. Baich’s letter alleges that ADC failed to file proper paperwork in the DEA, a registration to import controlled substances, and a declaration document when Arizona actually imported the thiopental. That could end up being Baich’s silver bullet. To drive the point home, he cites an email sent from an FDA official in Phoenix to one in Memphis, where the shipment was to land, saying “Please do not detain this entry.” Allegedly, the email was sent following a request for assistance by ADC Director Ryan.
The email is significant because of a similar development regarding another state’s importation of the same drug. Georgia Department of Corrections had a delivery of sodium thiopental held up by customs in Memphis, then seized by the DEA. According to the Atlanta Journal-Constitution, Georgia had failed to register with the DEA for the importation of drugs, and had failed to declare the shipment—exactly what Baich accuses Arizona of doing. According to documents he received, Georgia had even obtained their supply from the same British company that supplied Arizona. Due to the seizure of Georgia’s thiopental, the state has delayed executions indefinitely.
All of this adds up to a threat to capital punishment in Arizona, and any other state that uses thiopental in executions. If the situation were deemed by DOJ to be a “threat to public health or safety,” the law allows DEA to take more than just the thiopental. According to Baich, because ADC’s license to possess controlled substances could be revoked, all controlled substances—which would include the other execution drugs—in the department’s possession could be ordered to be sealed or delivered to the DEA. In this situation, executions in Arizona might be delayed indefinitely, as in Georgia.
It doesn’t look good for other states, either. Sodium thiopental, like most drugs, has an expiration date, so even those states that don’t have a high death row population will need to seek out new batches of the drug in the near future. Europe on the whole (except Belarus) opposes the death penalty, so if the British ban on thiopental exports is any indication, European countries will not help US states in this matter.
ADC has claimed innocence; a representative told BioMindShare via email, “[Our] Documents show the chemicals were obtained lawfully and with the assistance of the FDA and Customs. We also have a DEA certificate that allows for the importation of the chemicals.” Nevertheless, Ryan plans to switch to a one-drug procotol for lethal injections in the near future.
The one drug will likely be pentobarbitol, a drug already used to euthanize animals—Ohio used it in March of this year to execute prisoner Johnnie Baston. The switch to one drug might actually allow lethal injection to continue in Arizona without interruption, even if the DEA intercedes—in the Georgia case, the agency only took the thiopental, leaving them with the other two drugs. A one-drug system avoids that contingency entirely, as they don’t need the thiopental to proceed.
If it looks to you like ADC wins and the public defenders lose, remember that, for an attorney in the service of a death row inmate, any delay to the system could potentially save your client’s life. This comes out in Baich’s opinion on the one-drug switch, “Even if Arizona switches to a one drug protocol, the fact remains that the sodium thiopental was illegally imported.” He added, “The drug should still be seized as it could be used for another purpose.”
And that is what all of the legal wrangling is driving at—while states may be sovereign enough to decide whether or not they execute prisoners, they cannot override the FDA’s and the DEA’s mission to keep drugs from killing people. Even if the drugs they want are meant to kill people.
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