GALVESTON, Texas (CN) – Texas sued the Food and Drug Administration on Tuesday, demanding it release 1,000 vials of an execution drug the state imported that the FDA seized nearly two years ago.
The Texas Department of Criminal Justice ordered the vials of thiopental sodium, an anesthetic that can induce hypnosis in 30 seconds, in July 2015 from an unnamed foreign distributor and they arrived at Bush Intercontinental Airport in Houston the same day, according to the federal lawsuit.
The FDA sent Texas notice in August 2015 that it had seized the vials because the drug lacked adequate directions for use, did not have a strong enough warning about unsafe doses and it had not approved a “new drug application” for the shipment, according to the complaint.
Texas says the FDA should release the drug because it “falls within the ‘law enforcement’ exemption” of the agency’s rules for new drugs, and the use warnings don’t apply, because “there are no patients using the drugs.”
Texas seeks an injunction and declaratory judgment that the FDA has illegally delayed issuing a final decision on whether to approve the drug.
The FDA does not comment on pending litigation.
Numerous states have used thiopental sodium in one-drug lethal injections, according to the Death Penalty Information Center. The FDA has clashed with other states over their supplies of the drug.
In 2012 the FDA ordered Arizona, Arkansas, California, Georgia, South Carolina, South Dakota, Tennessee and Nebraska to hand over any thiopental sodium ordered from a foreign supplier, according to the Death Penalty Information Center.
Texas included thiopental sodium in a three-drug cocktail it administered to execute prisoners before large drug manufacturers, unwilling to be complicit in the death penalty, stopped producing the drugs the state used, forcing it to buy pentobarbital from a compounding pharmacy.
Texas has used only pentobarbital in its more than 30 executions since 2012. But it is worried it could run out.
“We cannot speculate on the future availability of drugs, so the agency continues to explore all options, including the continued use of pentobarbital or alternate drugs to use in the lethal injection process,” Texas Department of Criminal Justice spokesman Jason Clark told The Associated Press on Tuesday.
Pentobarbital is a barbiturate prescribed to treat insomnia and is used as an emergency treatment for seizures.
Texas has executed more prisoners than any state since the U.S. Supreme Court lifted a four-year ban on the death penalty in 1976. In 2016 Texas executed seven prisoners, down from 14 executions in 2015.
Numerous news outlets published stories recently suggesting U.S. capital punishment is a moribund institution, citing a December report from the Death Penalty Information Center that found juries issued 30 death sentences in 2016, compared to 315 in 1996.
The report said 20 people were executed in the United States in 2016, the fewest since 1991.
A Pew Research Survey conducted in August and September 2016 found 49 percent of Americans support the death penalty, the lowest percentage in four decades.
Despite those findings, the November elections showed Americans aren’t ready to end state-sanctioned killing. California and Nebraska voters rejected measures to ban capital punishment and it’s legal in 31 states.
Texas has nine death-row inmates scheduled for execution in 2017. The first is Christopher Wilkins, convicted by a Tarrant County jury in 2005 after he admitted on the stand that he shot two men dead. He is set to die Jan. 11.