The Food and Drug Administration (FDA) became the defendant in a civil suit filed this week by six Death Row inmates who face execution in Arizona (3 plaintiffs), California (2 plaintiffs), and Tennessee (1 plaintiff) as they seek a declaratory judgment from the federal judge presiding over the United States District Court for the District of Columbia that it is against federal law for the FDA to allow states to use imported sodium thiopental in their executions — and that the FDA was wrong to issue its announcement that doing so was okay.  No news to the FDA – there was a public meeting last month where the players met to discuss the issue, clearly without resolution (or maybe, the meeting was just a chance for the opponents to eyeball each other). 

The Wall Street Journal provides a copy of the newly filed complaint here, if you wish to read the entire pleading.

Represented by the Arizona District’s Federal Public Defender’s Office and the high-powered law firm of Sidley Austin, this looks to be a major courthouse fight over the use of lethal injection drugs purchased outside the U.S. borders – at least, until the F.D.A. approves them as being acceptable under American standards.  Sidley Austin is already instituting its media strategy, getting the word out with a press release this week, and we should all expect to see more new release updates from the plaintiffs as the fight progresses. 

What’s This Litigation Really Going to Do?

There are those that are hoping that closing the borders to the importation of this drug will somehow stop executions in this country.  That’s not going to happen:  not only do we still have other American suppliers that may step into the gap (and yes, we mean Besse Medical in Ohio), but there are already other execution methods on the books – legal alternatives to the lethal injection method that have been sanctioned as constitutional by the U.S. Supreme Court. 

Utah had its firing squad execution last year, without tremendous public outcry, remember?  An argument can be made that not allowing British companies, for example, to sell sodium thiopental to Arizona, for example, can force us all back to these alternative execution methods – which seem much less merciful, somehow.