States to FDA: Appeal Enforcement Discretion Decision

Posted 22 May 2012 | By Alexander Gaffney, RAC 

A group of 15 states is calling on the US Department of Justice (DOJ) and the US Food and Drug Administration (FDA) to appeal a Judge's decision in a lawsuit against both FDA and the states' ability to obtain a drug commonly used in the execution of convicted criminals.

CNN reports the states, all of which use lethal injection as their preferred method of execution, are having trouble obtaining sodium thiopental-an anesthetic commonly used as part of a multi-drug execution cocktail.

A 27 March decision by US District Court Judge Richard Leon called FDA's use of enforcement discretion "utterly disappointing" and indicative of the agency's "seemingly callous indifference to the health consequences imminently facing the executioner's needle." Leon then barred FDA from allowing the importation of further stock of the drug, saying it lacked the authority to do so.

While some states are moving to substitute sodium thiopental with another anesthetic, Propofol, they are also asking for FDA and DOJ to appeal Leon's ruling, calling it a "flawed decision."

"At the very core of the states' police powers are their powers to enact laws to protect their citizens against violent crimes," said the states' attorneys general in a joint statement. "As state attorneys general, we are tasked with enforcing those laws, including in instances where capital punishment is authorized for the most heinous of crimes."

Even some states opting out of using sodium thiopental, such as Oklahoma, are concerned about the cases' wide-ranging implications on state rights.

The decision "could be construed to significantly impair the state's ability to enforce their laws," wrote Oklahoma Attorney General Scott Pruitt.

Read more:

CNN - States urge feds to help import lethal injection drugs

KATV - Okla. AG wants appeal on execution drug ruling

Regulatory Focus - Court Bars FDA from Importing Drug Used in Death Penalty

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