Texas again stymied on execution drugs
State’s attempt to import new supplies blocked by FDA for second time in a year
AUSTIN — For the second time in a year, the U.S. Food and Drug Administration has blocked Texas prison officials from importing a drug intended for executions as a hedge against dwindling supplies that could thwart the use of deadly injections.
At issue is about $27,000 in drugs ordered by the state that federal agents seized last year and still hold.
Texas Department of Criminal Justice spokesman Jason Clark said Wednesday the latest “tentative” ruling by the FDA to block Texas’ importation of sodium thiopental will be appealed.
In a letter received Monday, the FDA notified state officials that it will stick with a decision last year that the drug has not been approved for injection into humans and, because of that, its importation by Texas will not be allowed.
The state had appealed the July 2015 seizure of 1,000 vials of the drug destined for the Huntsville prison that houses the state’s execution chamber. A shipment to Arizona also was seized. Looking at options
Clark said the agency is “exploring its options moving forward regarding the lawful importation of drugs used in the lethal injection process.”
He would not discuss specifics of the latest decision, but said TDCJ officials are hopeful they can convince the FDA in coming months to approve the importation and release the drugs.
FDA officials in Washington declined comment, saying the case remained pending. They previously have said the Texas case is the first challenge of its type involving the licensed importation of an execution drug.
State records show taxpayers already paid for the drug shipment. Court filings in other states show both Texas and Arizona, which had ordered 1,000 vials each from a company called Harris Pharma, were required to pay in advance before the drug was shipped.
Texas and other states have struggled for years to obtain execution drugs, most of them anesthetics and sedatives, as U.S. manufacturers stopped making them and European suppliers prohibited their export due to opposition to the death penalty.
Facing a shortage of sodium thiopental, Texas in 2011 switched to a three-drug cocktail for executions, and a year later went to a single lethal dose of pentobarbital, a fast-acting barbiturate, to carry out the death penalty.
Texas has carried out half of the 24 executions in the United States this year and leads the nation with 528 executions since 1982. Scarce supplies
As Texas and other states scrambled to find new supplies of the execution drugs, federal courts have ruled imports of thiopental illegal because it has not been approved for importation. In 2011, Kentucky and Tennessee were forced to hand over supplies of the imported drug to the Drug Enforcement Administration, and the agency later seized Georgia’s supply.
As states switched to alternate drugs, supplies of those have become scarce, as well.
Pentobarbital, which Texas, Arizona and other states switched to, is now so scarce that Ohio has put its executions on hold until 2017.
Texas officials said the state currently has enough pentobarbital on hand to carry out the eight executions that are scheduled through Oct. 19.
“TDCJ cannot speculate on the future availability drugs, so we continue to explore all options, including the continued use of pentobarbital or alternate drugs to use in the lethal injection process,” Clark said. “The current execution protocol calls for the use of pentobarbital and there are no immediate plans to change it.”
At the time of the FDA seizure at Bush Intercontinental Airport last year, TDCJ officials insisted they had imported the drug legally with a license they received from the FDA in January 2015. FDA officials said the drug was seized because it was not approved for its intended use.
Sodium thiopental is an older anesthetic generally no longer used in the United States but is widely used in developing countries.