Back in the 1980s, some death penalty abolitionists came up with the clever idea to sue the Food and Drug Administration to force the regulation of drugs used for lethal injection. Because drugs used for lethal injection could not be considered “safe and effective” for this use — at least not as far as the recipient is concerned — the advocates hoped this would force the FDA to ban the use of these drugs for lethal injection. It was a clever strategy but, as they say, it was too clever by half. The case worked its way up to the Supreme Court where, in Heckler v. Chaney, the Supreme Court held the FDA Commissioner’s decision not to initiate enforcement proceedings against the use of these drugs for lethal injection.
The current cocktail used for lethal injection includes two drugs, one of which (sodium thiopental) is not produced in the U.S. and must be imported. This gave some death penalty opponents the idea to try again, this time alleging that the FDA violated federal law by allowing the importation of sodium thiopental without first ensuring it is effective. They sued in federal district court, and won. In Beaty v. Food and Drug Administration, Judge Richard Leon concluded that because the FDA had not approved sodium thiopental for lethal injection the agency was required to prevent its importation.
The fight’s not over, however, as the FDA plans to appeal. Some states, such as California, also appear ready to resist the ruling and are refusing to return their supplies to the FDA, likely due to hope or anticipation that Judge Leon’s opinion will be overturned on appeal.