Nebraska will not surrender its supply of a controversial execution drug to the Food and Drug Administration because it believes the court order requiring it to do so is flawed, the state Attorney General's office indicated in a letter to the federal agency Friday.
James Smith, an assistant attorney general, suggested in the letter to the FDA that the agency should appeal U.S. District Judge Richard Leon's ruling on the drug, sodium thiopental. Leon ruled last month that the FDA was wrong to allow the drug into the country and he ordered the agency to immediately notify state correctional departments with foreign-manufactured stores of the drug, including Nebraska's, that its use is prohibited by law and that it must be surrendered.
"Other than the court's erroneous order, we are unaware of any evidence or reasons why the Department of Correctional Services should be required to return any thiopental in its possession," wrote Smith wrote, who also asked for contact information for the FDA's attorney and Justice Department officials who might be involved in deciding whether to appeal the ruling.
Nebraska Attorney General Jon Bruning issued a statement Friday saying that Nebraska's supply of sodium thiopental was purchased from a different supplier than the one cited in the case over which Leon presided, and that Nebraska's drug "was approved for importation by the U.S. DEA, FDA and Customs."
Asked about the state's response, FDA spokeswoman Shelly Burgess declined to comment, citing pending litigation in the case.
Sodium thiopental is an anesthetic used to put inmates to sleep before other lethal drugs are administered during an execution. Nebraska obtained a stock of the drug from a foreign supplier after the drug's U.S. manufacturer announced last year it would no longer produce it.
Nebraska's supply of sodium thiopental has been under fire for more than a year, when the drug was first obtained from an India-based drug company. That batch was ruled to have been illegally imported. The state then obtained a new batch from another Indian source last year, but the Swiss manufacturer of the drug, Naari AG, said that the sodium thiopental that Nebraska bought was a sample intended only to be used for evaluation purposes as an anesthetic in Zambia.
Bruning has defended the state's purchase of the lethal injection drug as legal.
In his ruling, Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who want to keep out sodium thiopental, because it is an unapproved drug manufactured overseas. The Obama administration argued it had discretion to allow unapproved drugs into the U.S.