There is a nationwide shortage of sodium thiopental, a lethal injection drug that is used for the death penalty. There is a sole US manufacturer of the drug (Hospira Inc.), and they have been facing shortages as a result of problems with their raw-materials suppliers. They have said that new batches won't be available until January, at the earliest. This shortage affects many states and their planned executions. Most recently, Arizona was set to execute an inmate (Jeffrey Landrigan), and as a result of the shortage in the U.S., they decided to buy thiopenthal from another country. The issue with this is that these drugs, bought internationally, are not approved by federal inspectors for use in the U.S. They were bought from a non-FDA-approved manufacturer (there are no FDA-approved manufacturers of this drug overseas).
The inmate's lawyer argued that because these drugs were obtained from an unreliable source, there's a chance the drug might not work correctly and could lead to cruel and unusual punishment. With lethal injection executions, the thiopental makes the inmate unconscious, then a second drug paralyzes them, and the third drug stops their heart -- if the thiopenthal doesn't work (and the inmate is not rendered unconscious), they could be suffocated painfully. The inmate's lawyer wanted the state to disclose the source of the drug. The prosecutors said they cannot reveal the source because state law requires confidentiality for those involved with executions. Though they did eventually say that they obtained the drug from Great Britain. The state revealed the origins because they wanted the public to know that the drug came from a reputable place (and not a third world country, said Chief Deputy Attorney General Tim Nelson. Keeping it classy!); though they would not reveal who manufactured it (maybe it was third-world immigrants living on the streets of Great Britain!).
Jeffrey Landrigan's execution was scheduled for Tuesday morning, but a stay was issued by a federal judge in Phoenix, and the execution was temporarily put on hold. The federal judge's ruling was upheld by an appeals court panel. Then the case went to the US Supreme Court and they lifted the stay Tuesday night. They ruled 5-4 that he could be executed. Justices Ginsburg, Breyer, Sotomayor, and Kagan made up the dissenting opinion and opposed the lifting of the temporary restraining order. The Supreme Court majority said there was no evidence to suggest that the drug was unsafe. The majority wrote, "The district court granted the restraining order because it was left to speculate as to the risk of harm. But speculation cannot substitute for evidence that the use of the drug is sure or very likely to cause seriously illness and needless suffering." Though, that's what the FDA does when they approve these drugs. They make sure the drug is not likely to cause illness or suffering. As this drug is not FDA approved, no such evidence exists. And so it gets the green-light. Seems like flawed logic: This drug is fine to be administered because it's not proven to be dangerous, and it's not proven to be dangerous because it hasn't been researched by the FDA. What does the Supreme Court propose, that the defense get their evidence by testing this drug out on someone to determine whether it is safe or harmful? I guess Jeffrey Landrigan is that person.
I also believe the Court has it backwards in that I don't think the defendant has to prove the drug is unsafe to use; instead, I think the state has to prove the drug is safe to use (especially as they're the ones resorting to non-FDA-approved drugs). The burden of proof should lie with the state. The Supreme Court majority talked about how the district court was mistaken for allowing the stay because "it was left to speculate as to the risk of harm", and speculation doesn't substitute for evidence -- but the Supreme Court (and the state of Arizona) are speculating on the lack of harm. And that, most certainly, shouldn't be substituted for evidence. I think the burden of proof lies with those claiming safety. If officials (like the state of Arizona, for example) claim some product is safe, and this product is being given to people, the officials have to make the case that it's safe and is fine to be given to the people -- it should not be the responsibility of the people to prove that it's unsafe and that it should not be given to them.
The Supreme Court majority also wrote in their opinion that there was no indication that the drug was unlawfully obtained. But, really, the issue is not that it was unlawfully obtained -- the issue is that it would be unlawfully used. States shouldn't be allowed to inject an inmate with a drug that is not approved for use in the United States. Until that approval is granted, they shouldn't be allowed to use this drug.
After the Supreme Court cleared the way, Jeffrey Landrigan was executed that evening. I did not hear any word that it was a botched execution, so I assume everything went according to plan. The odds are the drug purchased in Great Britain would work effectively, but the issue is that Arizona couldn't be certain. The issue is that this particular thiopental had not yet been approved by inspectors for use in the United States. And the state of Arizona really shouldn't be taking those chances. (Full Story) (Full Story)
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