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U.S. drug companies won’t help execute people, so the DOJ will allow prisons to buy from other countries


What you’ll read today

  • Spotlight: U.S. drug companies won’t help execute people, so the DOJ will allow prisons to buy from other countries

  • Incarceration is always a policy failure

  • Judge says Seattle’s contract with police union undermines public trust in police accountability

  • Massachusetts law would ban cell phones while driving but also monitor for racial profiling in its enforcement

  • New Orleans judge forced defendants to use ankle monitoring company owned by campaign contributor

  • “Every law passed to ‘fight terrorism’ will end up used to cage poor people”

In the Spotlight

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.

Stories From The Appeal

Rikers Island [Photo illustration by Elizabeth Brown. Photo by John Moore/Getty Images]

Incarceration Is Always a Policy Failure. Instead of building ‘humane jails’ to replace Rikers Island, let’s push the NYPD to cut down on arrests, a criminal justice advocate writes. [Jonathan Ben-Menachem]

Stories From Around the Country

Judge says Seattle’s contract with police union undermines public trust in police accountability: “A federal judge has found that a portion of Seattle’s contract with its biggest police union threatens to undermine public confidence in a seven-year-old reform agreement between the city and the Department of Justice,” according to the Associated Press. Yesterday, U.S. District Judge James Robart––a George W. Bush appointee––said “the city must fix deficiencies in the closed-door appeal process for officers who have been fired or disciplined before it can be released from federal oversight.” The decision was prompted by the case of an officer who won back his job after being fired for punching a handcuffed woman. Robart expanded his inquiry to include “a detailed account of how the ‘disciplinary system and appeals process’ has changed since the department came under federal oversight.” This decision is a blow to Mayor Jenny Durkan and Police Chief Carmen Best, “who hailed the contract with the Seattle Police Officers Guild as a key step in the city’s effort to comply with federally mandated reforms.” [Associated Press]

Massachusetts law would ban cell phones while driving but also monitor for racial profiling in its enforcement: A bill that would ramp up the collection of data on traffic stops to examine racial profiling passed the Massachusetts House of Representatives yesterday. The bill calls for the state to study the feasibility of expanding data collection to include “the race and gender of each individual subject to traffic stops,” whether or not a citation is issued. This came in response to concern that enforcing a ban on cell phone use while driving would lead to racial profiling by police officers. The bill would require the Registry of Motor Vehicles to collect the data from police departments, submit it to state officials, and have it studied and made public. [Bob Salsberg / Associated Press] Advocates for racial equality routinely warn that new laws will result in disparate enforcement.

New Orleans judge forced defendants to use ankle monitoring company owned by campaign contributor: The nonprofit judicial monitoring group CourtWatch NOLA issued a report yesterday that documented, among other things, a pattern in which New Orleans Judge Paul Bonin ordered people to use ankle monitors and pay off their fines before they could be released. Bonin steered defendants to one particular monitoring company, which happened to be owned by a campaign contributor. The judge has acknowledged errors, but maintains that he acted ethically. “Unlike many other jurisdictions, the city now has no central contract for ankle monitoring of defendants,” reports Matt Sledge for the New Orleans Advocate. James Kilgore, a fellow at the Center for Media Justice, said, “One of the real problems with electronic monitoring is that it’s not regulated. If you have it completely decentralized and individualized like that, it removes all hope of actually having any accountability.” [Matt Sledge / New Orleans Advocate]

“Every law passed to ‘fight terrorism’ will end up used to cage poor people”:



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