Execution by . . . Heroin?: Why States Should Challenge the FDA's Ban on the Importation of Sodium Thiopental

Author:Matthew C. Bergs
Position:M.H.A. candidate, The University of Iowa College of Public Health, 2018; J.D. candidate, The University of Iowa College of Law, 2017; B.A., Marquette University, 2013
Pages:761-791
SUMMARY

This Note traces the history of the lethal injection drug shortage and its impact on how states carry out the death penalty. Though this topic has received much attention in recent years, relatively little attention has been paid to the D.C. Circuit's decision in Cook v. FDA, which exacerbated the shortage. In Cook, the D.C. Circuit enjoined the FDA from exercising its enforcement discretion to... (see full summary)

 
FREE EXCERPT
N2_BERGS_UPDATED (DO NOT DELETE) 1/15/2017 9:55 AM
761
Execution by . . . Heroin?: Why States
Should Challenge the FDA’s Ban on the
Importation of Sodium Thiopental
Matthew C. Bergs*
ABSTRACT: This Note traces the history of the lethal injection drug shortage and its
impact on how states carry out the death penalty. Though this topic has received much
attention in recent years, relatively little attention has been paid to the D.C. Circuit’s
decision in Cook v. FDA, which exacerbated the shortage. In Cook, the D.C. Circuit
enjoined the FDA from exercising its enforcement discretion to allow the importation of
sodium thiopental, the primary anesthetic used by states in lethal injection executions.
This decision is significant because it effectively required the FDA to ban the importation
of sodium thiopental, forcing states to find other ways to carry out executions. Many
states have turned to new drugs and manufacturers, while others have returned to past
methods of execution. However, states’ use of alternative drugs and manufacturers has
had disastrous consequences, and the return to old methods of execution constitutes an
unacceptable regression towards inhumane and barbaric punishment. Thus, this Note
argues that states should make every effort to obtain sodium thiopental. Potential
avenues to obtain the drug include adhering to the FDA’s regulations or litigating
against the FDA’s regulations. Renewed access to sodium thiopental will resolve many
of the problems plaguing the administration of lethal injection.
I. INTRODUCTION & BACKGROUND .................................................. 762
A. HISTORY OF LETHAL INJECTION AS A METHOD OF EXECUTION ... 763
B. DEVELOPMENT OF THE LETHAL INJECTION DRUG SHORTAGE ..... 765
II. ASSESSMENT OF THE D.C. CIRCUITS DECISION IN COOK V. FDA ... 768
A. EXPLANATION OF THE SUPREME COURTS DECISION IN
HECKLER V. CHANEY ............................................................. 769
B. ANALYSIS OF THE D.C. CIRCUITS DECISION IN COOK V. FDA ... 770
C. WHY COOK V. FDA WAS WRONGLY DECIDED ........................... 771
*
M.H.A. candidate, The University of Iowa College of Public Health, 2018; J.D.
candidate, The University of Iowa College of Law, 2017; B.A., Marquette University, 2013. I would
like to thank Professor Todd Pettys and Dr. Ben Gillig for their invaluable comments on earlier
drafts of this Note. I would also like to thank the Iowa Law Review Volume 102 Editorial Board for
its assistance in preparing this Note for publication. Finally, I would like to thank my parents,
Dr. Joe and Carrie Bergs, to whom I am deeply indebted, both literally and figuratively.
N2_BERGS_UPDATED (DO NOT DELETE) 1/15/2017 9:54 AM
762 IOWA LAW REVIEW [Vol. 102:761
III. RESPONSES TO THE D.C. CIRCUITS DECISION IN COOK V. FDA .... 772
A. EXPERIMENTING WITH ALTERNATIVE DRUGS ............................ 773
B. ENGAGING WITH COMPOUNDING PHARMACIES .......................... 776
C. RETURNING TO PAST METHODS OF EXECUTION ......................... 779
D. IGNORING THE FDA’S RESTRICTIONS ........................................ 783
IV. POTENTIAL SOLUTIONS TO THE D.C. CIRCUITS DECISION IN
COOK V. FDA .................................................................................. 786
A. ADHERE TO THE FDA’S REGULATIONS ...................................... 786
B. LITIGATE THE FDA’S REGULATIONS ......................................... 788
V. CONCLUSION ................................................................................ 790
I. INTRODUCTION & BACKGROUND
“I’ve heard everything from using heroin to using nitrogen to going back to the
electric chair. That’s a debate that probably we need to have.”1
A lethal injection drug shortage has crippled the “machinery of death.”2
In recent years sodium thiopental, one of the most reliable and effective
anesthetics3 used by states in lethal injection executions, has become
unavailable in the United States.4 The D.C. Circuit’s decision in Cook v. FDA
to enjoin the United States Food and Drug Administration (“FDA”) from
allowing the importation of sodium thiopental5 has compounded the
shortage, forcing states into what has been described by some as “an almost
Wild West frenzy.”6 Now officials are exploring new and old frontiers such as
alternative drugs, alternative manufacturers, and past methods of execution
in an effort to find a solution to the shortage.7 Such efforts have been largely
unavailing, however, and have renewed the debate over whether the death
1. Karen Kasler, Lethal Injection Drug Shortage Causes Lawmakers to Consider Changing
Execution Method, WXVU (Oct. 23, 2015), http://wvxu.org/post/lethal-injection-drug-shortage-
causes-lawmakers-consider-changing-execution-method#stream/0.
2. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).
3. See Robert Lowes, Anesthesiologists Ask FDA to Okay Importation of Sodium Thiopental, MEDSCAPE
(Feb. 11, 2011), http://www.medscape.com/viewarticle/737303 (discussing the American Society of
Anesthesiologists’ request to the FDA that it allow the importation of sodium thiopental because it
“remains a mainstay of anesthesia induction medications” and, therefore, “[i]ts availability must be
ensured”).
4. Ty Alper, Opinion, Why the Execution Drug Shortage Won’t Go Away, L.A. TIMES (Apr. 13,
2015, 11:22 PM), http://www.latimes.com/opinion/op-ed/la -oe-alper-lethal-injection-shortages-
20150414-story.html.
5. Cook v. FDA, 733 F.3d 1, 3 (D.C. Cir. 2013).
6. Gregg Zoroya, Death Penalty Spurs Wild West Scramble for Drugs, USA TODAY (Mar. 17,
2014, 6:49 PM), http://www.usatoday.com/story/news/nation/2014/03/09/executions-lethal-
injection-drugs-prisons-death-penalty/5866947.
7. See infra Part III.

To continue reading

FREE SIGN UP