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Calif. defies order to turn over execution drug

Paul Elias has this story for Associated Press:

California on Friday joined other states in defying a federal government order to turn over a key execution drug.

At issue is the drug sodium thiopental, one of three drugs California and dozens of other states use in lethal injections. It puts the inmate to sleep before fatal doses of two other drugs are delivered. California and others have been purchasing the drug oversees since the United States' sole manufacturer ceased production of the anesthetic in 2011.

U.S. District Judge Richard Leon in March ruled that the Food and Drug Administration erred in allowing the prisons to import the foreign-made drug. The judge ordered the FDA to confiscate all foreign-made sodium thiopental and to warn prisons that it was now illegal to use the drug. The FDA followed the Washington D.C.-based judge's order and sent demand letters to prisons. But beginning with Nebraska on April 20, more than a dozen states have refused to comply with the FDA order.

On Friday, California joined the protest in a letter sent to the FDA. With 725 Death Row inmates, California has the highest number of condemned prisoners.

California Department of Corrections and Rehabilitation lawyer Benjamin Rice and the other states with foreign-bought sodium thiopental contend they aren't bound by the ruling made by a federal judge in Washington D.C. They also argue that the judge was wrong and urged the FDA to appeal.

We noted in this post on Tuesday that the letter was signed by 15 AGs, not including Kamala Harris.  Better late than never.

"The CDCR is unaware of any laws or imperative that would require it to return the thiopental in question," Rice wrote Domenic Veneziano, director of the FDA's import operations. Rice wrote that subjecting lethal injection drugs to the same regulations designed to prevent illegal sales of controlled substances is a "strained interpretation" of the law.

That paragraph refers to a different letter, dated May 1 although I hadn't seen it or any reference to it in the press until now.

The story also discusses the L.A. motion, noted here.


How does one defy a brutum fulmen? That about describes Judge Leon's order.

Judge Leon did not order the states to turn over their thiopental. He couldn't, as they were not parties to the action, and they couldn't be made parties without their consent due to the Eleventh Amendment. So he ordered the FDA to tell the states that their possession and use of thiopental is illegal. The FDA letter is what the states are defying. The compelled statement is false. Even on the dubious assumption that Judge Leon is correct that the importation was improper, the law does forbid the continued possession and use. That is what Rice's letter says.

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