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.
Back to the feds. It defies all logic that federal law enforcement would investigate a state for possessing a shipment approved by the FDA for a procedure that the U.S. Supreme Court upheld in a 7-to-2 vote in 2008. If death penalty opponents can't defeat a law at the ballot or legislatively, they go to the courts. If the courts don't comply, they go after doctors, drug companies and corrections departments, and now they have the federal government doing their dirty work.
No wonder people think the government is too big: The DOJ has directed the DEA to investigate corrections departments for possessing a drug in shipments approved by the FDA for a punishment upheld by the U.S. Supreme Court.
California obtained its sodium thiopental like the other targeted states, but state Department of Corrections and Rehabilitation spokeswoman Terry Thornton told me that the feds are not investigating the state's supply.
Why would they? California has not seen an execution since federal judge Jeremy Fogel effectively ended them in February 2006. Other lawsuits have added to the tangle.
FYI, the California Corrections Department had the thiopental tested, and it is now lab-certified. Berenson was unimpressed.
Kent Scheidegger, legal director of the conservative Criminal Justice Legal Foundation, thinks one way to impede stall-inducing litigation would be to reinstitute the gas chamber, but use nontoxic gas to replace oxygen. "It gets rid of this whole notion of a quasi-medical procedure," he explained, when execution is in reality "a punishment" for horrific crimes.
Of course, first Sacramento would have to pass a law. Then there'd be administrative law reviews. Add another decade.
Steve Livaditis no longer is a party in the suit against the FDA -- but the San Quentin Death Row inmate was a fitting plaintiff. When he was convicted for killing three people in a 1986 jewelry heist, a probation report noted that at first Livaditis said he felt guilt over the brutal slayings, but then he started reading the Bible, and "since I accepted Jesus, I have a clear conscience."
Thank you, Attorney General Eric Holder. And pleasant dreams, Mr. Livaditis.