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The FDA and the Death Penalty

It is easy to lose sight of one’s mission and we should be sympathetic and not critical. After all, its employees are busy people and that probably helps explain why the Food and Drug Administration has momentarily gotten confused as to its purpose. On its website it says the FDA” “is an agency within the Department of Health and Human Services . . . [that] is responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs. . . . ” It is “also responsible for advancing the public health by helping to speed innovations that make medicines and foods more effective, safer, and more affordable; and helping the public get the accurate, science-based information they need to use medicines and foods, and to reduce tobacco use to improve health.”

An example of its good work was the announcement last November that it was going to make cigarette companies put really awful pictures of people adversely affected by tobacco on each pack of cigarettes to discourage those offended by such gruesome pictures from smoking. Health and Human Services Secretary Kathleen Sebelius said at a news conference: “We want to make sure every person who picks up a pack of cigarettes knows exactly what the risk is they are taking. ”

In January the FDA announced new restrictions on some of the most popular prescription painkillers because they caused “many patients to poison themselves with overdoses of the drug acetaminophen.” This was yet another example of the FDA looking out for the best interests of the public that it is charged with safeguarding. Helping the general public enjoy better health is not all it has been doing, however. It has also been helping penitentiaries in California and Arizona execute their death row inmates by providing sodium thiopental.

Executioners in the United States are suffering from a short supply of sodium thiopental. Hospira Inc. of Lake Forest, Illinois is the only American manufacturer of the product and it says that it has encountered supplier issues that have made it impossible to manufacture the drug. As was observed here a few weeks ago, although Texas has enough of the drug on hand to dispatch more people on death row than it can possibly use before the expiration date of the drug, it does not want to share with other states for reasons best known to itself. As a result of Texas’s unwillingness to share, Arizona found itself in the position of having the execution of Jeffrey Landrigan delayed due to the unavailability of domestically produced sodium thiopental. Although the drug was available from a British firm, Mr. Landrigan’s attorneys feared it might not measure up to the high quality executioners in this country had come to expect from the domestically produced drug.

Arizona was not the only state that found itself in the awkward position of having people ready to be executed but no available drugs to get the job done. California was in a similar spot. San Quentin was suffering from a lack of the drug and feared that its executions might also have to be postponed until the drug became domestically available once again. And here’s where the FDA came to the rescue. In a report in the Washington Post on January 11, 2011 by Andrew Welsh-Huggins, it was disclosed that Arizona had written the FDA explaining the dreadful dilemma it confronted and asking for the FDA’s help. When the FDA learned of the dilemma facing Arizona and California, one of its officials stepped up to the plate and recommended that a shipment of the drug “be processed expeditiously to us as it was for the purpose of executions and not for use by the general public.” (Why it needed to be processed expeditiously when the general public was not the beneficiary of the effort is hard to understand. Perhaps the official making the recommendation is a supporter of the death penalty and hated see the execution process delayed for lack of a drug that was readily available in England.)

It seems a bit odd to have the FDA expediting executions. As Natasha Minkser, the death penalty policy director for the ACLU’s Northern California chapter said: “The FDA is actively assisting these states, but they’re not enforcing the law, and they’re not doing anything to determine that the drugs are what they’re claimed to be and that they work properly.” It is unlikely that Ms. Minkser would feel better if the FDA tested the drug to make sure it works “properly” before forwarding it to the states. Indeed, it is not clear that the FDA should care a fig for whether the drug works properly. It should not be in the death dealing business. Someone should tell Ms. Sebelius.

CHRISTOPHER BRAUCHLI is a lawyer living in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

 

 

 

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