Only in Texas — State Sues Feds Over Withholding Execution Drugs

It could fit on a You Know You're in Texas When... coffee mug, or a gimmicky T-shirt, or maybe a ball cap: Texas is suing the feds over withholding its execution drugs. Specifically: imported thiopental sodium, which induces unconsciousness and is used for lethal injections.

The Texas Department of Criminal Justice was supposed to receive a shipment of the execution drugs in July 2015 from a mysterious overseas manufacturer that the state has never publicly identified, but the U.S. Food and Drug Administration detained the drugs once they arrived in Houston over concerns about their legality. The FDA has the right to withhold and further examine imported drugs it suspects aren't up to snuff on labeling laws or proper FDA approval protocols. But now Texas, the nation's all-time leader in executions, says the FDA is taking too damn long to make a decision and would like to please obtain its execution drugs ASAP.

“There are only two reasons why the FDA would take 17 months to make a final decision on Texas’s importation of thiopental sodium: gross incompetence or willful obstruction,” Texas Attorney General Ken Paxton said in a statement. “The FDA has an obligation to fulfill its responsibilities faithfully and in a timely manner. My office will not allow the FDA to sit on its hands and thereby impair Texas’ responsibility to carry out its law enforcement duties.”

Er, you know, kill people.

Texas Department of Criminal Justice spokesman Jason Clark said the FDA's delay in handing over the drugs has not impaired the state's ability to execute people. Clark said TDCJ is currently using pentobarbital for its lethal injections, and said the state has plenty in stock to carry out all executions scheduled in 2017. Nine are scheduled so far, up through June 28.

"We cannot speculate on the future availability of drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.

According to the lawsuit, the FDA originally decided to detain the drugs after the July 2015 shipment for three key reasons: a lack of "adequate directions for use" on the label; a lack of "adequate warning against use in pathological condition or by children where it may be dangerous to health or against an unsafe dose"; and the fact that it's a new drug that has not been approved by the FDA through an application. Texas's legal argument is that, under the FDA's own regulations, the state is exempt from these rules because the death drug is not intended for patients, kids won't be exposed to it and it will only be used for "law enforcement purposes."

Therefore, that's the only thing that the drug's labels say — which the FDA apparently finds problematic.

Asked for further explanation on the FDA's delay in deciding whether Texas could have its drugs, FDA spokeswoman Lyndsay Meyer said in a statement: "The FDA does not comment on possible, pending or ongoing litigation."

Texas executed only seven people in 2016, losing its longstanding distinction as the country's top executioner to Georgia, which executed nine. At one point in 2016, the state had gone a whole six months without killing a single person, a record that had not been broken in 20 years, when legal challenges to the death penalty halted most executions that year.

The low stats are due largely to the fact that judges and appellate courts rescheduled or stayed executions 15 times for 11 people last year, as the Texas Tribune reported. Other experts have attributed the rare lull to changing attitudes about the death penalty and juries' increasing preference for life without parole.
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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn