by Joe Watson
Arizona's Department of Corrections (ADC) imported a drug used for executions, but federal agents seized and impounded the illegal shipment at the Phoenix airport before it could be used for lethal injections.
The ADC reportedly paid $27,000 for 1,000 vials of sodium thiopental, which is typically the first of three drugs administered during lethal injections. That potent anesthetic, however, which was mailed to prison officials in July 2015, is no longer made by companies approved by the Food and Drug Administration (FDA).
“[The] FDA has determined that this shipment should not be allowed to destination at this time and thus will not be requesting that [customs officials] lift its detention,” the agency wrote in an August 24, 2015 letter to ADC Director Charles L. Ryan, finding the lethal injection drugs were misbranded and unapproved.
The FDA was acting pursuant to a 2012 federal court ruling that prohibited the agency from allowing the importation of sodium thiopental into the U.S. for the purpose of executions.
After Ryan and ADC officials appealed to the Drug Enforcement Administration (DEA), they were again rebuffed when the agency informed them in a written statement that, according to the FDA, there was no approved application for sodium thiopental. The DEA concluded that it was illegal to import an unapproved new drug into the United States. Sodium thiopental, however, is not technically a new drug; in fact, it predates the Food, Drug and Cosmetic Act of 1938, and has never been approved by the FDA for importation – which is just one aspect of Arizona’s dilemma.
Besides the state’s apparent hypocrisy in the enforcement of its drug laws, Arizona’s other major problem, shared by other pro-death penalty states, is the difficulty in obtaining lethal injection chemicals. Most of the companies that manufacture such drugs, the majority of which are based in Europe, have banned their sale and exportation to the U.S. According to a Washington Post article in February 2017, many of the companies stopped selling their drugs to states for use in executions because they view the practice as “barbaric.” Most execution drugs are dual-use, meaning they have legitimate medical applications beyond their use in executions. Medical professionals have added that “their duty is to save lives, not to end them.”
Hence, the ADC sought a distributor willing to provide a supply of sodium thiopental, but that company was overseas. Though the name of the distributor was redacted from documents obtained by the Associated Press and the Arizona Republic, both concluded the drugs were likely shipped by Harris Pharma, a distributor based in India. Harris Pharma also sent supplies of sodium thiopental to corrections agencies in Nebraska, Ohio, South Dakota and Texas. Those shipments, however, were also seized by federal agents.
The Associated Press and Arizona Republic learned about the ADC’s failed attempt to obtain sodium thiopental from Harris Pharma because both news organizations are parties to a federal lawsuit over the ADC’s lack of transparency in state executions.
Arizona is also facing litigation over its use of midazolam, a Valium-like drug that state prison officials used in the execution of death row prisoner Joseph Wood in July 2014. Wood had been convicted in the 1989 murders of his girlfriend and her father; his execution lasted one hour and 57 minutes, and he received 15 doses of midazolam and hydromorphone when only one dose of each supposedly should have ended his life. [See: PLN, Dec. 2016, p.63].
According to witnesses, during that almost two-hour time span, Wood snorted, gasped for air and even tried to sit up in the gurney. That incident resulted in a temporarily halt in executions in Arizona until lawsuits originally filed by Wood and other death row prisoners over execution drugs are resolved.
Wood’s public defender, Dale Baich, noted that midazolam is not an appropriate drug for lethal injections because it “has failed to keep condemned prisoners adequately anesthetized and to bring about a quick, humane death.” He further criticized Arizona’s efforts to illegally import sodium thiopental. “Once again, [the ADC] is trying to skirt the law in order to get execution drugs,” Baich said. “Nobody is above the law, and that includes [the ADC].”
Arizona officials have proposed an unlikely solution to this conundrum: that death row prisoners provide their own lethal injection drugs. In February 2017, the Washington Post reported that the state’s manual for execution procedures said attorneys or other representatives could obtain pentobarbital or sodium pentothal to be used in executions. [See: PLN, April 2017, p.47].
Meanwhile, on April 20, 2017, the FDA issued a final decision and notified Arizona and Texas officials that the shipments of sodium thiopental they had ordered from India would not be released, but would have to be destroyed or exported within 90 days. Texas has filed suit against the FDA seeking to have the drugs returned.
“It has taken almost two years for the Food and Drug Administration to reach a decision, which we believe is flawed,” the Texas Department of Criminal Justice stated. “TDCJ fully complied with the steps necessary to lawfully import the shipment.”
Texas prison officials said they would proceed with scheduled executions using another lethal injection drug, pentobarbital – which is also used to euthanize animals.
Sources: Associated Press, www.azcentral.com, The New York Times, Washington Post, Reuters, www.ktla.com
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