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February 3, 2011

Another litigation front, now involvign the FDA, in the battles over lethal injection drugs

As detailed in this USA Today piece, yesterday lawyers who represent "six death row prisoners sued the U.S. Food and Drug Administration ... in an attempt to block the importation of a key drug used by states to perform executions by lethal injection." Here is more:

The lawsuit, filed on behalf of prisoners in Arizona, California and Tennessee, alleges that the FDA allowed states to import unapproved supplies of sodium thiopental in violation of federal regulatory laws....

"Because unapproved sodium thiopental has not been shown to work as intended, using it in executions creates unacceptable risks that prisoners will not be properly anesthetized before the other drugs used in lethal injection protocols stop the prisoners' breathing and induce cardiac arrest," attorney Bradford Berenson said. "Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions."

The lawsuit alleges that large amounts of unapproved sodium thiopental have been imported by at least six states: Arkansas, Arizona, California, Georgia, Nebraska and Tennessee.

This WSJ Law Blog story on this lawsuit provides this link to the complaint some interesting background on the notable lawyer quoted above:

The death-row inmates are represented by powerhouse law firm Sidley Austin and partner Bradford Berenson, a former associated counsel to president George W. Bush. “The FDA is improperly allowing drugs into the United States even though it won’t stand behind their safety and efficacy,” he said.

Berenson notes that he’s “never had a moral problem with the death penalty.” But, he said, thiopental serves a critical role in executions of rendering condemned inmates unconscious, so that they do not suffer severe pain during the process. “What we are trying to prevent with the suit are inhumane executions,” he said.

February 3, 2011 at 06:28 PM | Permalink


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It's almost funny how I thought the lethal injection challenges would have ended in 2008. They've been recycling the same arguments since then, and probably will for years to come.

Posted by: MikeinCT | Feb 3, 2011 8:27:34 PM


it is endless. Never underestimate the DP opponents to come up with never ending claims. They are quite good at it and the courts listen no matter what happened with Baze. Look at how many states haven't had any executions since Baze.

Posted by: DaveP | Feb 3, 2011 8:54:53 PM

All the drug has to do is knock the killer out. A simple consciousness check should do that fine.

Posted by: federalist | Feb 3, 2011 9:19:50 PM

A government that doesn't obey its own laws deserves the utmost contempt, and that includes contempt of court if it comes to that. Hat's off to Sidley Austin and partner Bradford Berenson, and don't forget the APA in California if nowhere else. Buying it elsewhere was probably an underground regulation.

Go get 'em.

Posted by: George | Feb 3, 2011 11:05:50 PM

And George, what of the Arkansas woman who, when she was 11, survived an attack that killed her mom. She didn't ask to be in that situation, and her attacker, her mother's killer, was sentenced to death. Should she be condemned to interminable litigation over this? Is that right? The answer, of course, is no. Perhaps, just perhaps, you ought to think about her, rather than exulting in some temporary victory of her assailant.

This isn't about preventing "torture". No one seriously thinks that, for example, Nebraska's stash, wouldn't work. This is about some Sidley twit who wants to show the world how self-righteous he is.

Posted by: federalist | Feb 3, 2011 11:35:20 PM


"A government that doesn't obey its own laws deserves the utmost contempt,"

For some crimes, the death penalty may be appropriate. However, I believe that many, if not most in the law profession (and LE, Judicial and government positions) do not have the necessary intelligence to make these Solomon decisions.

As someone (from the wealth creating private sector) who dealt with the FDA for over 25 years, and had to jump through artificial 21 CFR hoops, you are thoroughly correct.

PS: A US government that poo-poos the US Constitution (since 1914 and counting) needs too see what is happpening in Egypt.

We need to dump everyone in Congress and (at the least) halve the pensions for every government retiree and current/future employees.

Necessity is the mother of invention.

I know that this is not possible, so how do we save ourselves, our future and our children?

Posted by: albeed | Feb 3, 2011 11:49:53 PM

The lawyers and judges obstructing justice should be placed on a black list. No product or service provider should ever serve them. The families of the murder victims should bring street justice to these cult criminals. To deter.

Posted by: Supremacy Claus | Feb 4, 2011 1:12:45 AM

In the opinions of you legal eagles commenting on this site, if states started switching to the firing squad, do you think the US Supreme Court would uphold the use of the firing squad under the Eighth Amendment?

Also, would state statutes pass constitutional muster if they provided for the firing squad in cases where the use of lethal injection was being held up by defense gambits such as the current FDA one, or in cases where a good vein cannot be found?

And, while I'm here, what on earth is going with the federal lethal-injection litigation?! It's been going on since 2006. Baze was in 2008. What gives?

Posted by: alpino | Feb 4, 2011 5:56:56 AM

Baze upheld Kentucky's protocol without a consciousness check. Had that been a part of it, Baze would have been decided without dissent. This should be added as a precaution to minimize litigation. The inmate still has to show substantial likelihood of pain. All these claims are nonsense.

Posted by: DaveP | Feb 4, 2011 7:38:24 AM

It is not like only capital defense attorneys try every possible option. After all, there were claims made against the health law that even Judge Vinson rejected. And, the fact the claims were deemed silly even by Charles Fried didn't stop them. Heck, they even found some judge to accept one that even a judge against the "mandate" found unconvincing.

Seriously, there is a shortage of the drugs, and the states are trying to be a bit creative. More power to them, but novel techniques are open to review. It comes with the territory.

Posted by: Joe | Feb 4, 2011 9:24:08 AM

alpino --

Use of the firing squad was upheld against an Eighth Amendment challege in Wilkerson v. Utah, 99 U.S. 130 (1878). Of course, that's a mite old.

The firing squad actually was used to execute a killer, Ronnie Lee Gardner, in June 2010. Under Utah law at the time of his sentencing, he had the choice of firing squad or lethal injection; he chose the former.

The fact that this choice was allowed, despite what must have been an Eighth Amendment challenge to it (although I don't know that for sure), suggests that a similar choice would be allowed today. Of course it would make a difference that the state would do the choosing, under your proposal, and not the inmate.

Still, your general view has merit. If inmates want to go on and on with these nitpicking appeals about what ought to have been put to rest in Baze, then the country should just say to heck with it, we'll use something that doesn't involve choosing this chemical or this other, nearly identical chemical. The gas chamber, for example, would fill the bill.

As an aside, the Supreme Court has NEVER held that a particular method of execution used in this country was impermissible.

Posted by: Bill Otis | Feb 4, 2011 2:09:29 PM

most of you are missing the point. Only george seems to get it. This isn't about the death penalty or trying to be nice to murders.... It's about the govt OBEYING it's OWN LAW. As long as the govt prohibits and actualy crimilizes the importatiion of drugs by it's OWN CITIZENS using the claim they are not approved and may be dangerous...it has NO BUSINESS doing the same thing for ANY REASON.

So might be time to stop protecting the business in this country that has blocked drug imports for years...and tell the truth about the drugs.. They are just the same and in most cases CHEAPER then the same drug sold here and then we could all move on and these individuals who DISERVE to die can be removed.

Posted by: rodsmith | Feb 4, 2011 7:23:29 PM

If there were laws and regulations regarding what weapons and ammunition was required (say, only U.S. made) then the government should have to obey those firing squad laws and regulations.

Federalist, usually you say the lawbreaker should have thought of that before breaking the law. The same holds here. The government should have thought of the victims and sufficiently prepared enough to make it unnecessary to break the law.

What other laws do you think the government can break in the name of victims and where do you draw the line?

Posted by: George | Feb 4, 2011 8:27:10 PM

@rodsmith and George
According to the FDA, the usual laws barring importation of drugs do not apply to lethal injection drugs since those laws are intended to stop 'unsafe' drugs from being imported. Therefor, the government did not break the law.

Posted by: MikeinCT | Feb 4, 2011 11:01:02 PM

MikeinCT, I believe a subset of "unsafe" is a drug that is not manufactured pursuant to protocols that ensure it is consistently effective. That is the point of regulatory standards. While it is ironic that we discuss drugs in the context of safe or not and yet were imported for the deliberate and premeditated killing of someone, it is not so strange when considered in the context of reliably manufactured or not.

Posted by: George | Feb 4, 2011 11:11:25 PM

rodsmith and George,

You can both talk till your blue in the face and it will just not sink in for some people. I have found that many would rather go through life with their eyes closed to the governments dismissal of their own laws and subsequently our freedoms.

For many, "ignorance is bliss" and they like it that way!

Posted by: Book38 | Feb 5, 2011 1:48:36 AM

Legislation should be enacted making all collateral, pretextual death penalty, any that does not involve claims of innocence, to be in bad faith. The sanction is to be that all costs are to be taken from the personal assets of the plaintiff attorney.

Posted by: Supremacy Claus | Feb 5, 2011 11:17:04 AM

So far the drugs used have been effective in achieving a quick, reasonably painless death. This and the fact that the standards for drugs that kill should be lower makes the FDA's position all the more reasonable.

That, and I think the government and the courts would be more receptive to these challenges if we were not in the FIFTH year of lethal injection challenges since the Hill case.

Posted by: MikeinCT | Feb 5, 2011 2:04:10 PM

MikeinCT, one of the dead guys told me it really, really hurt but only when he laughed.

Posted by: George | Feb 5, 2011 7:11:36 PM


"@rodsmith and George
According to the FDA, the usual laws barring importation of drugs do not apply to lethal injection drugs since those laws are intended to stop 'unsafe' drugs from being imported. Therefor, the government did not break the law.

Posted by: MikeinCT | Feb 4, 2011 11:01:02 PM"

So your and the FDA are saying if i wanted to import a million pills into this country to turn them into an art exibit it would be legal? yea right!

sorry that one's a non-starter....

Posted by: rodsmith | Feb 5, 2011 8:02:33 PM

Theoretically, yes. They only apply that regulation to medications intended to help patients.

Posted by: MikeinCT | Feb 5, 2011 9:53:49 PM

Where in the APA are there such explicit exclusions, MikeinCT? Sounds like an underground regulation to me.

Posted by: George | Feb 6, 2011 4:33:56 AM

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