U.S. drug companies won’t help execute people, so the DOJ will allow prisons to buy from other countries
For the past few years, people have predicted that the death penalty in the U.S. would end not with a lofty Supreme Court decision about the sanctity of life, but rather with a drug shortage. Indeed, a decade ago, American drug manufacturers stopped making execution drugs to rid themselves of the association with the death penalty. “Drug companies have made it clear that they don’t want states using their products to carry out death sentences,” wrote Mark Berman for the Washington Post. They have even asked states to return some chemicals. “The strategy has helped cut states off from many of the drugs they have used or sought to use for lethal injections, causing authorities to scramble to find new drug combinations or different execution methods.” Some drug companies went so far as to file lawsuits aimed at keeping their drugs away from executions. [Mark Berman / Washington Post]
States asked each other for the missing drugs. When Arizona gave some to California, a corrections official from California sent a thank-you note to the deputy director of Arizona’s Department of Corrections that read, “You guys in AZ are life savers,” adding, “by [sic] you a beer next time I get that way.”
But as the supply dried up at home, states began turning to international sources for drugs. According to The Marshall Project, when “activists started alerting companies and governments in Europe that their drugs were being used in executions,” the companies began to withhold them. “States started scrambling for new sources and combinations of drugs and passed laws to shroud the process in secrecy.” According to BuzzFeed News, corrections departments spent tens of thousands of dollars on otherwise-unavailable execution drugs from Chris Harris, a “salesman without a pharmaceutical background” who says he operates a facility in India.
The drug in shortest supply is sodium thiopental, an anesthetic without which (and possibly also with which), lethal injections are excruciating and torturous. The anesthetic, and the entire process of executing people by lethal injection—as opposed to, say, hanging, firing squad, gas chamber, or electric chair—has given some people the idea that executions are now somehow less barbaric.
This sort of cultural anesthetic was, in part, the work of a Republican state representative from Oklahoma, Bill Wiseman, who voted for the death penalty and regretted it. “The motivation to get re-elected, to be popular, to have everybody like you… worked at cross-purposes with what that still small voice would say on issues like capital punishment,” Wiseman said in 2005. “I knew that capital punishment, it doesn’t work, it doesn’t make sense, I couldn’t see any way to justify it. I also knew that if I voted against it, from my district, I would run a high chance of getting whooped. And I was having the best time and I didn’t want to get whooped.” He said he felt “pretty disgusted” with himself, so he worked with the state medical examiner to implement what is believed to be the world’s first lethal injection protocol. [KOTV]
Much of today’s drug shortage can be attributed to FDA regulation. In 2012, a federal judge ruled the Food and Drug Administration had “a mandatory obligation … to refuse to admit the misbranded and unapproved drug, thiopental, into the United States.” According to the New York Times, “in 2015, for example, the agency announced that it had impounded shipments of thiopental that Arizona and Texas had sought to import, saying that it was an unapproved drug that could not be imported into the United States under the 2012 court opinions.” For years, the agency held the drugs and resisted calls for the drugs to be released, but, according to BuzzFeed News, “withheld a final call on whether they’d ever be admissible.” Under President Trump, Texas sued the FDA, calling the lengthy detention “gross incompetence or willful obstruction” and asking that the agency be forced to make a final decision. Texas glossed over the source of its drugs, calling it a “foreign distributor.” [Chris McDaniel and Tasneem Nashrulla / BuzzFeed News]
This month, however, the Department of Justice declared that the FDA has no legal authority to regulate execution drugs, opening the door for states to import them from other countries. In a 26-page memo, Steven A. Engel, the head of the department’s Office of Legal Counsel, concluded that the FDA had no right to regulate execution drugs because they do not count as a “drug” or a “device” within the meaning of the federal Food, Drug, and Cosmetic Act of 1938. That act mandates that drugs that alter or affect the body cannot be brought to market in the U.S. unless and until the FDA has approved them as safe. “But in a 2000 ruling, the Supreme Court held that the FDA lacked authority to regulate tobacco because it could not be used safely and yet there was no sign that Congress had intended for it to be banned,” according to the New York Times. The DOJ’s recent announcement relies heavily on that ruling. “Interpretations of the Constitution and federal law by the Office of Legal Counsel are binding across the executive branch, so Engel’s ruling means the FDA must cease interfering with states’ attempts to import drugs like sodium thiopental.” [Charlie Savage / New York Times]
The law that empowers the FDA to ensure that drugs are safe “cannot sensibly be applied” to death-penalty drugs because doing so would mean the act would effectively ban them, Engel wrote. “Yet the Constitution and laws of the United States presuppose the continued availability of capital punishment for the most heinous federal and state crimes.” In other words: Because the death penalty is still legal, these drugs must be available.
This kind of logic might make a reasonable person think something along these lines: Eating food is also legal, and something Americans do regularly, and yet we all rely on the FDA to regulate the safety of foods, so that dangerous food never makes it to our plates. Taking over-the-counter painkillers is also legal, but if all the Tylenol available caused immediate heart attacks, for example, we would expect the FDA to step in, and not merely throw up its hands. And more to the point, the anesthetic in the case of executions is intended for use on people who will soon die, but everyone will die eventually, and the efficacy of the drugs they take is no less important. It is, of course, made more important by the fact that the state is administering the drugs by force.
Engel further muddied the waters by claiming that the decision followed the principle of federalism, which, he wrote, “provides further support for the conclusion that the [Food, Drug, and Cosmetic Act] should not be read to regulate—and therefore, effectively prohibit—the states’ administration of capital punishment.” The irony of this statement is that the drug shortage itself was largely caused by the drug companies’ unwillingness to participate in executions. Some of this is a response to societal pressure, some of it seems ethical. As noted in the March 7 edition of the Daily Appeal, these companies must “operate in secret because their work is considered too immoral by too many people.” It is therefore deeply ironic that Engel would look to circumvent the shifting morals around executions in the U.S., open the door to other countries, and then claim the mantle of federalism.