Judge: FDA allowed state to illegally gain execution drug

A U.S. District Court judge on Tuesday morning found that the U.S. Food and Drug Administration violated the law by allowing Arizona and other states to bypass regulations while importing unapproved drugs to carry out executions by lethal injection.

The ruling was made in a lawsuit filed in the name of Donald Beaty, an Arizona Death Row inmate who was executed last year.

The drug sodium thiopental, a short-acting anesthesia, that was used in executions. became unavailable in mid-2010 because its sole U.S. manufacturer had ceased production. That fall, The Arizona Republic first reported that Arizona corrections officials had obtained the drug from a distributor in London, although FDA officials were saying that it was not possible to import the drug; such exports also violated Bristish law and were shut down shortly afterward. In late December 2010, FDA officials told The Republic that it would exercise "enforcement discretion" on the matter.

E-mails obtained through Freedom of Information requests later showed that FDA officials had allowed the shipments. In April 2011, the drug was seized from some states by the U.S. Drug Enforcement Administration, and in June 2011, Arizona was told it could not use its supply, one day before Beaty's execution. Beaty was executed using a different drug.

In his ruling Tuesday, Judge Richard Leon of the District Court for the District of Columbia, wrote, "In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!"

Dale Baich of the Federal Public Defender's Office in Phoenix said, "The states that have imported non-FDA approved drugs are now on notice that those drugs are illegal."

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