The Texas Department of Criminal Justice’s battle against the US Food and Drug Administration over an impounded shipment of drugs to be used for lethal injections continued Wednesday with the state filing an amended court complaint.
The motion follows the FDA’s decision last week to rule that sodium thiopental cannot be imported into the United States, blocking states from using the drugs in executions. The agency has not approved the drug’s use in the United States
More than 21 months ago, the FDA detained 1,000 vials of the drug Texas authorities had purchased. The drugs sat in storage and the agency didn’t issue a ruling on accessibility.
In January, the state asked the federal court in the Southern District of Texas to get the FDA to give it the right to use the drug. More than 200 people are on death row in Texas, the state said in the court filing.
The state now argues law enforcement agencies are exempt from a 2012 federal rule for new drug approval requirements.
“Use of (sodium thiopental) to administer lawfully-imposed capital sentences through lethal injection is a use of the drug for law enforcement purposes,” the state says in the complaint. “The (FDA’s) refusal order directly harms TDCJ by preventing TDCJ from having the option of using the drugs at issue in lawful executions.”
The state asks the court to rule the refusal order is unlawful.
The FDA has said it doesn’t comment on ongoing litigation.
Lethal injection is the primary means of execution in all 31 states that use the death penalty.
Lethal injection initially required a three-drug cocktail: The first, sodium thiopental or pentobarbital, puts the prisoner to sleep; the second, pancuronium bromide, brings on paralysis and the final agent, potassium chloride, stops the heart.
With supplies of lethal injection drugs running low, states have found alternatives from foreign suppliers.
In 2010, European drug manufacturers began to ban exports of the cocktail ingredients to the United States. The following year, concerned about the use of sodium thiopental in executions, Illinois-based Hospira stopped making the drug, and Denmark-based Lundbeck banned US prisons from using its pentobarbital.
The United Kingdom also introduced a ban on exporting sodium thiopental, and the European Union took an official stance in 2012 with its regulation on products used for capital punishment and torture.
States with the death penalty began looking for alternatives. Among them: procuring the drugs from alternative sources, devising a one-drug method, employing other drugs such as midazolam or propofol, and using controversial compounding pharmacies to manufacture the drugs.
According to the Dallas News, Texas will use pentobarbital in executions for now.