President Obama well may have begun another undeclared war -- this time on states that try to enforce their own death penalty laws -- on the dubious grounds that the Food and Drug Administration has not approved drugs intended to kill convicted killers.
On March 15, the Drug Enforcement Administration seized Georgia's supply of sodium thiopental, the first drug given under the three-drug lethal injection protocol used in most of the country's 34 death-penalty states. The DEA also asked Kentucky and Tennessee for their sodium thiopental to aid its investigation.
Why? The DEA referred me to the Department of Justice, which sent an e-mail declining to comment. News reports indicate that the feds had concerns that the drugs were imported improperly.
In the meantime, defense attorneys for convicted killers have been happy to chat with the press about what they call the illegal purchase of the drug. They never give up. First, international death penalty opponents blocked foreign manufacture of lethal injection drugs. Then, they put so much pressure on the industry that U.S. manufacturer Hospira stopped making it. As the supply dried up, states scrambled to get remaining doses and turned to a British wholesaler. That created another opening.
A lawsuit filed in a District of Columbia federal court charges that Georgia, California and other states have received shipments of "foreign thiopental" that was "misbranded" -- and worse, not FDA approved. Attorney Bradford Berenson, who worked in the George W. Bush Justice Department, told me he's not morally opposed to the death penalty. The goal of the suit was to force the FDA "to follow the law" and not allow "the importation of unapproved foreign drugs."
Berenson warned that if thiopental is not administered properly, the middle drug in the protocol could cause excruciating pain. "Where this is clearly headed," he said, "is changing the lethal injection protocols to no longer rely on this drug" -- but instead try another anesthetic, maybe pentobarbital or propofol.
Problem: In response to the thiopental squeeze, Texas switched to pentobarbital. So: The ACLU tried to block the switch by arguing, among other things, that the lethal dose would not be administered by a health care professional. The next hitch: Medical associations bar doctors from participating in executions.