DOJ Bars FDA From Regulating Death Penalty Drugs

In a blow to death penalty abolitionists, the Department of Justice just issued an opinion stating that the Food and Drug Administration lacks regulatory authority to oversee materials used in executions.

Somewhat ironically, the agency noted the FDA’s mission involves determining whether items are “safe and effective” — and therefore overseeing equipment and drugs used in capital punishment would fall outside the FDA’s purview. The opinion appears calculated to break the current critical shortage of drugs used in executions, and it will undoubtedly be subject to legal challenge.

While the combination of drugs used in executions varies, one of the core components is sodium thiopental, which has not been manufactured in the United States since 2009. That led states to work through stockpiles of the drug and then to look overseas. But then, in response to a federal injunction, the FDA started blocking the import of sodium thiopental and other anesthetics that could be used to execute incarcerated people. Meanwhile, some countries and companies declined to sell to the U.S., fearing their medications might be used in executions.

The Trump administration has been fighting with the FDA over this, and the DOJ opinion appears to be the next strategic move. The FDA cannot regulate these drugs in an execution context, but the old bans still stand, creating a somewhat awkward standoff. Some states are clearly hoping it ends with being allowed to import these drugs, and here’s where the situation gets very unpleasant.

Without FDA oversight, states could theoretically order from anywhere — with India and China both indicating they’re willing to supply to death penalty states. But the drugs may not necessarily perform as advertised. They could have impurities, contamination or flaws in manufacturing that make them ineffective or cause severe complications, such as excruciating pain or prolonged executions. The agency actually seized imports of these drugs in 2015, setting off a legal battle as states sued to get them back.

The DOJ argues that capital punishment is lawful and states that choose to use it should be able to do so without federal interference. By regulating the drugs, the FDA could close off one avenue of capital punishment — though states have also used gas, firing squads, hanging and electrocution in the past. A shortage of execution drugs has certainly slowed the rate of capital punishment across the country, though of course incarcerated people sentenced to death are still trapped in prisons.

This opinion contradicts that of federal courts — an issue that will almost certainly be flagged in impending lawsuits. Of course, states could get around this issue entirely by banning the death penalty and moving on to other options for accountability, such as the use of restorative justice.

Intriguingly, the DOJ made much of the fact that these drugs are used explicitly to harm people and with an intent to kill. But it also stressed that this opinion was narrow — saying it didn’t speak to whether the FDA could regulate drugs used in physician-assisted suicide.

Physician-assisted suicide is gaining traction in many states, while the anti-abortion movement has taken it up as an adjacent cause, pushing to repeal or oppose laws and ballot initiatives that support it. This opinion from the DOJ would seem to suggest that the FDA is within its scope in this context, even though these drugs are similarly used with the goal of killing the patient.

Photo credit: C_FOR/Getty Images

26 comments

heather g
heather g22 days ago

I'm not surprised that the USA still executes people.

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Leanne K
Leanne K28 days ago

Elizabeth H, I would say that was because of the U.N Declaration of Human Rights was ready after 30 years of painstaking writing. Signatories had to ratify their laws to match

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Leanne K
Leanne K28 days ago

Of course Trump is pro death penalty. Of course his cronies will try to circumvent any and all impediments to executing large scale executions. No doubt he will use that as a basis when he is up for reelection

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Danuta W
Danuta W28 days ago

Thank you for sharing

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Past Member
Past Member 29 days ago

Does killing a criminal really lessen crime, or does it really do anything about the root causes of it at all? How about the ACE or Adverse Childhood Experiences surveys talking about the increase of childhood trauma, not just physical or sexual, but emotional abuse. How about the lack of adequate resources in mental health circles? The stigma around mental health and abuse? The poverty and lack of access to ways to survives that attract young people to gangs. Anyone ever think of that?

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Anne Moran
Anne Moran29 days ago

Just hang em' high,, later for drugs...

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Alea C
Alea C29 days ago

We'll be finding out just how bad these drugs are soon enough when SCOTUS overturns Roe v Wade and Alabama starts killing women who miscarry.

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Loredana V
Loredana V29 days ago

Many anti-abortion activists support death penalty: isn't it curious?
I'm glad to live in a Country han banned it decades ago, it's revenge and not justice. Moreover, there are more criminals in Countries with death penalty that elsewhere.
Thank you.

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Heather B
Heather B29 days ago

so what/ the FDA also thinks pesticides are safe.don't know that they should be trusted with anything else.

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Wesley S
Wesley Struebing29 days ago

"The DOJ argues that capital punishment is lawful and states that choose to use it should be able to do so without federal interference." That could be (and I hope is) taken to SCOTUS, who has already ruled on various "cruel and unusual punishments". All of the se drugs used in executions have "primary" uses. If the FDA cannot rgulate them becuase they might be used in capital punishment, doesn't tha mean they can't be regulated at all? Gods, this DoJ has gone downhill under the misogynist-in-chief.

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