Texas sues to release execution drug shipment seized by US
The suit claims the FDA's refusal to release the drugs for use in lawful executions will cause ongoing harm to the state
By Gabrielle Banks
HOUSTON — On Thursday, the US Food and Drug Administration told Texas and Arizona that over a thousand vials of drugs they ordered for executions in their states would not be released to them. the Texas Department of Criminal Justice and the Arizona Department of Corrections ordered sodium thiopental from India in 2015. The drugs were and seized by U.S. Customs. The confiscated shipments have been refused because they seem to contain unapproved new drugs and misbranded drugs.
The Texas prison system sued the U.S. Food and Drug Administration Wednesday demanding the return of 1,000 vials of a lethal injection drug confiscated two years ago at Houston Intercontinental Airport.
The lawsuit comes in response to an FDA ruling last week that the drugs were improperly labeled and must be destroyed or returned to the overseas vendor that sent them within 90 days.
The drug seizure is the latest victory for death penalty opponents who are fighting to cut off the supply of drugs for use in executions.
The suit filed Wednesday in Galveston before U.S. District Judge George C. Hanks Jr. claims the FDA's refusal to release the drugs for use in lawful executions will cause ongoing harm to the state.
Lawyers for the Texas Department of Criminal Justice have argued that the state qualifies for a special law enforcement exemption to the FDA labeling requirements.
The vials of sodium thiopental were seized in July 2015 at the airport upon arrival by airfreight from India.
TDCJ had purchased the mass shipment in 2015 to keep on hand for future executions. More than 200 death row inmates have been designated for execution by lethal injection.
The seizure and another in Arizona mark the first time that execution drugs have been intercepted entering the country, said Robert Dunham, executive director of the Death Penalty Information Center.
"You cannot import a medicine for an unauthorized purpose, whether that purpose is law enforcement or to de-ice a plane," he said.
Prison officials in Arizona and Nebraska also bought shipments of 1,000 vials of the drug from a distributor in India.
Arizona's shipment was seized by federal authorities at the Phoenix airport; Nebraska's purchase never arrived, although the state received a $54,400 invoice for the purchase just the same.
Texas and Arizona had obtained an import license from the Drug Enforcement Administration, but that did not satisfy FDA officials, who concluded that the shipment violated federal regulations requiring that directions for use and warning labels be affixed to drug packaging.
Pharmaceutical companies and medical professionals in the U.S. and Europe have opposed the use by executioners of drugs commonly administered by doctors for medical purposes. States across the country that impose the death penalty have had increasing problems obtaining drugs suitable for lethal injection, leading them to find unusual suppliers.
Most recently, Arkansas accelerated the pace of executions because its hard-to-find lethal injection drugs were nearing their expiration date.
Sodium thiopental is a barbiturate that renders a person unconscious. Texas has used it in more than 400 executions, but it has not been used in the death chamber in Huntsville since 2011. It is widely regarded as the drug of choice for states that use a single drug for executions.
Dr. Joel Zivot, an associate professor of anesthesiology at Emory University School of Medicine who has been called as an expert in the Arkansas cases, said sodium thiopental was traditionally a "workhorse" in operating rooms, the preferred anesthetic of choice. It chemically disrupts wakefulness, allowing doctors to perform surgery without causing pain to patients.
"If someone has decided to make sodium thiopental for the target market of corrections, that's disturbing for me, because that's re-purposing a medicine and trying to make it a poison to kill people," Zivot said.
The lawsuit seeks to delay destruction or exportation of the drugs until the legal issues are resolved.
State and FDA officials declined to comment about the pending lawsuit.
Scroll through the gallery above to see the most controversial executions in Texas
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