Feds battle death penalty states trying to illegally import lethal injection drugs
Gurney used for lethal injections (AFP)

States are locked in legal battle with the federal government after regulators intercepted illegally imported anesthetics to be used in lethal injections

Death penalty states are locked in a legal battle with the federal government after regulators intercepted shipments of illegally imported anesthetics that were destined to be used in executions as part of lethal injection protocols.

Documents released by the Arizona department of corrections as a result of a lawsuit led by the Guardian and joined by several Arizona news organizations reveal that the state’s department of corrections (DoC) was clearly warned by federal officials against illegally importing the drugs. Yet the documents in Guardian versus the DoC director Charles Ryan show that days later the state went ahead with importing the drugs regardless.

On 13 July, the US department of justice wrote to the DoC and said that the state’s desire to import sodium thiopental – an anesthetic that is not approved for importation in the US – was illegal. The letter said that according to the Food and Drug Administration, the federal agency that regulates medicines, “there is no approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States”.

Despite the crystal clear warning, Arizona went ahead with the shipment, which arrived at Phoenix Sky Harbor International Airport on a British Airways flight on 25 July and was duly blocked by FDA officials.

The existence of the detained shipments was first reported by the Arizona Republic, which is party to the Guardian’s lawsuit.

Dale Baich, a leading authority on death penalty litigation based in Arizona, said he was troubled by the state’s behavior. “Their position is that they need these drugs to carry out executions, but you cannot break the law to enforce the law.”

Arizona is not the only death penalty state that has tried to circumvent an international boycott of US lethal injection drugs by seeking illegally to import anesthetics. Buzzfeed News has revealed that Nebraska and Texas are also engaged in similar legally dubious activities.

A Buzzfeed News investigation this week tracked down the source of the foreign drug shipments to Chris Harris, a man with no pharmaceutical background and whose company, Harris Pharma, operates in a small rented office in Kolkata. The news organization reported that he may have sold execution drugs to as many as five death penalty states in the US.

The focus on the nefarious ways that death penalty states are seeking to acquire killing drugs came as

President Obama expressed his concerns about capital punishment. He told the Marshall Project that he found botched executions, as well as racial bias and the risk of innocent people being put to death, “deeply troubling”.

The Guardian documents reveal that the Arizona DoC spent $25,000 buying 1,000 vials of sodium thiopental at $25 each. The total cost of the shipment came to $26,700.

A spokesman for the DoC confirmed to the Guardian that the FDA was continuing to block the execution drugs from reaching its death chamber, and said that the state was contesting the action. In the released documents, Arizona promises that it “will not use, or attempt to use, the sodium thiopental currently being imported until this cargo is either unconditionally released by the FDA or the department is otherwise permitted to do so by a court order”.

The Guardian lawsuit was lodged in a federal court as a means of challenging the secrecy adopted by the state in an attempt to hide the source of its execution drugs. Arizona is one of several death penalty states that have adopted new secrecy laws that prevent members of the public from finding out how the ultimate punishment is being carried out.

Baich said that death penalty states were going to great lengths to hide what they were doing “because what they are doing is questionable. This demonstrates why secrecy is a problem – if states operated in the open they would not deal with shady drug providers and they would not be able to skirt the law.”