Looking Glass World: CA Must Return Its Death Row Cocktail Due To Concerns Over Its Ill Effect On Inmates

The headline ("California Refuses To Return Execution Drug To FDA") looks like another feds vs. state dispute that is emblematic of the Age of Obama, but actually it's a lot more complicated. Turns out the FDA doesn't really want the drugs back either.

California prison officials are defying a U.S. Food and Drug Administration order to return supplies of a foreign-made drug used in executions, saying they disagree with a federal judge's ruling that the drug was imported illegally without an FDA safety review. 

The FDA, which also disagreed with the judge and argued that no such review is required, said Friday that it will appeal the ruling. 

The dispute adds further uncertainty to the resumption of executions in California, blocked since 2006 by an order by another federal judge who found numerous flaws in the state's procedures for lethal injections. 

The drug, sodium thiopental, is an anesthetic used by California and most other states to render a prisoner unconscious at the start of the execution process. After the sole U.S. manufacturer stopped production in 2009, California and several other states got new supplies from a British distributor of Austrian-made sodium thiopental.

The real problem is a DC-based federal judge (a George W Bush appointee, as it happens) who ordered the FDA to demand that states return the stuff for further testing.

The FDA, which tests foreign-made medications for safety and effectiveness before allowing their distribution, approved the drug's shipments without inspection, saying a review of execution drugs was not part of its "public health role." A judge in Washington, D.C., disagreed in March and told the agency to halt the imports and to tell states to return their supplies to the FDA. 

A 1962 law explicitly requires the FDA to test all imported drugs and to baLabelsn shipments of unexamined drugs, said U.S. District Judge Richard Leon. He said the agency was violating the law and appeared to be demonstrating a "callous indifference to the health consequences of those imminently facing the executioner's needle."

I realize that topics like the death penalty, food & drug safety, and execution "cocktails" are Serious Business, but it's hard to read that last sentence without laughing. 


Younger folks might not realize this, but 20 years ago the use of drugs as tools of state execution was seen as the perfect solution to the argument that other methods (electric chairs, gas chambers, firing squads, alligator pits, deportation of illegal immigrants) constituted cruel and unusual punishment. The drugs worked silently and quickly, putting the condemned to sleep before finishing them off. They certainly worked well here in California with a number of satisfied customers going to their reward without choking to death in the gas chamber. 


But, within a few years, death penalty opponents were at it again, claiming that the prisoners experienced pain when their hearts stopped working. (yes, but it was a very short-lived pain). Drug proponents had effectively adopted the premise that all of the other methods were cruel & unusual, but now death penalty opponents were able to convince a federal judge in CA that the drug cocktail was also cruel & unusual, and - gosh darn it - there were no other methods available. So, we've had an unofficial moratorium on the death penalty since 2006. If you're starting to think it was all a set-up, well I don't think you're wrong.