Texas is suing the federal Food and Drug Administration over a months-long delay in access to drugs the state uses in lethal injections.
State Attorney General Ken Paxton (R) said Wednesday his office filed suit to gain access to hundreds of doses of thiopental sodium, which the FDA intercepted more than 17 months ago. The FDA said at the time that the drug was not approved for use in humans, and therefore the shipment the state ordered could not be imported.
The FDA has not issued a final decision on whether Texas’s purchase of thiopental sodium fell under a law enforcement exemption for new drug approvals. Paxton said the delay has gone on too long.
“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,” Paxton said in a statement. “My office will not allow the FDA to sit on its hands and thereby impair Texas’s responsibility to carry out its law enforcement duties.”
States that still implement the death penalty have had trouble finding drugs necessary to carry out lethal injections in recent years. American pharmaceutical companies have largely stopped making drugs used in lethal injections, and European pharmaceutical companies have refused to sell drugs for use in executions after the European Union banned exports in 2011.
An overdose of thiopental sodium, a barbiturate, paralyzes muscles and stops the heart. It had once been used as part of a three-drug cocktail to carry out executions, but states have increasingly used the drug alone as the other two elements have become unavailable.
The FDA intercepted separate shipments of the drug, purchased by Texas and Arizona, at airports in Houston and Phoenix in 2015. The agency said it was acting on a court-ordered injunction against importing the drug.
After the Supreme Court once again allowed the death penalty to be implemented in 1976, Texas became the first state to kill a condemned prisoner by lethal injection. Since then, Texas has executed 538 people, more than any other state. More than 250 people are still on death row in Texas, according to the Death Penalty Information Center.