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January 4, 2017

"Texas sues feds over confiscated execution drugs"

The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:

For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.

Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.

In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.

In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.

As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....

"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.

Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.

January 4, 2017 at 11:42 AM | Permalink


These vials do not contain drugs to treat disease. They contain poisons to kill people. A legal point should be made for injunctive relief that the FDA has no jurisdiction over them.

Posted by: David Behar | Jan 4, 2017 2:11:47 PM

Plenty of drugs on the Controlled Substances Act do not treat diseases, but the FDA still has jurisdiction over them.

Posted by: Erik M | Jan 5, 2017 8:59:56 AM

Erik. Schedule I drugs are loved too much by the public, and addictive.

The criterion of "no medical use" is false, because all Schedule I drugs have medical uses. Heroin is an effective analgesic. Marijuana is a Schedule I drug, but is recognized as medically valuable by half the states. LSD has been used therapeutically in government sponsored research, sometimes without the knowledge of the research subject.


The drugs that are most dangerous of all, alcohol and tobacco, are all natural, gluten free, GMO free, are extremely toxic, killing 500,000 people a year. Alcohol is the most crimogenic substance known to man, likely a factor in half of all crimes. They are, of course, available over the counter, with no prescription or FDA Scheduling in sight. Even they serve a medical purpose. Two drinks a day is associated with a lower mortality from heart disease. And the nicotinic receptor is being studied as a potential remedy for dementia. All active applications to the body have a dose response curve. Radiation not only serves cancer patients, but in low doses, can prevent cancer by killing small numbers of early cancer cells, and is good for you. So people in areas where low level radiation was released may have a low cancer rate. That effect even has a name, hormesis.

The FDA is silly and worthless. It serves no known rational governmental purpose. It can be ignored by the states. If they send in federal officials, dispute their jurisdiction in court when it comes to death penalty poisons. If they get physical, grabbing the supplies, taser the federal officials and throw them out of the state.

I have also suggested that the states produce the death penalty substances in their Prison Industries facilities, using the considerable synthetic chemistry talents of the prisoners. If they go down that road, the prisons can get really rich making generic drugs and underbidding the competition with insurance company payers. It is a great business, far more profitable than making clothing, furniture or license plates.

Posted by: David Behar | Jan 6, 2017 9:17:23 PM

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