In February last year, a group of murderers from Arizona, California, and Tennessee filed suit against the FDA claiming that agency was acting improperly in allowing imports of thiopental for use in lethal injection.
Last month, Federal District Judge Richard Leon in D.C. issued a remarkable opinion, complete with exclamation points, accepting the murderers' arguments. In addition to granting declaratory relief and enjoining the FDA from allowing further imports, the accompanying order says this:
IT IS HEREBY ORDERED that the FDA:
1. immediately notify any and all state correctional departments which it has
reason to believe are still in possession of any foreign manufactured thiopental that the use of such drug is prohibited by law and that, that thiopental must be returned immediately to the FDA; ...
How is this wrong? Let me count the ways.
First, the gnarled syntax is a crime against the English language.
Third, the order clearly crosses the line drawn by the controlling Supreme Court precedent in Heckler v. Cheney, 470 U.S. 821 (1985), ordering an executive department to undertake an enforcement action it has discretion not to undertake. The opinion attempts to distinguish this case as to the FDA's actions in allowing importation. (I will put aside for now whether it succeeds.) But it makes no attempt to distinguish that case for the purpose of ordering the FDA to take action against the existing stocks.
Fourth, the order impairs the rights of entities not a party to the action, in violation of Federal Rule of Civil Procedure 19 as well as basic concepts of due process. And states can't be made parties to federal civil litigation without their consent under the Eleventh Amendment, so under Rule 19(b) the court must consider a list of factors and generally either dismiss or shape the relief so as not to impair the rights of the absent party. Judge Leon shows absolutely no awareness of his obligation under the law in this regard. To quote Judge Leon, "How utterly disappointing!"
So, back to the Argus Leader story:
Let's have a standing ovation for Attorney General Jackley.
In response to that, the FDA sent South Dakota a letter April 6 telling it "to make arrangements for the return to the FDA of any foreign-manufactured thiopental in its possession."
Jackley has refused. He sent a letter back the following day saying the state's thiopental already has cleared customs and been independently tested to ensure it was pure and adequately potent. He invited the FDA to work with the state on further testing if it has concerns about the thiopental in South Dakota's hands.
But Jackley is walking a careful middle ground. While acknowledging the FDA's authority to oversee drugs, he is not ceding the state's right to have a death penalty.
"The state's position is we have a duty to carry out a judge's sentence and to serve justice on behalf of a victim's family. We would hope the federal agencies appreciate that position and work with us to ensure that carrying out the courts' sentences is done in a constitutional manner," Jackley said.
South Dakota has an execution scheduled for September.
By the way, lead plaintiff Beaty won no victory here. He was executed May 26, 2011. Plaintiffs' counsel filed a document with the unusual title "Suggestion of Death." I have not seen one of those before.