Justice Department Takes Steps To Increase Accessibility To Execution Drugs As States Scramble Amid Shortage

The opinion from the Justice Department's Office of Legal Counsel says the FDA lacks the authority to regulate drugs or other items when used in connection with the death penalty. When the only U.S. manufacturer of sodium thiopental stopped production in 2009, states began scrambling to find stocks of the drug in the U.S. and abroad. But the FDA had previously moved to halt such imports.

The Washington Post: Justice Department Says FDA ‘Lacks Jurisdiction’ Over Death-Penalty Drugs

The Justice Department says in a new legal opinion that the Food and Drug Administration does not have authority over drugs used in lethal injections, a stance sure to be challenged by death-penalty opponents. The department’s Office of Legal Counsel said that “articles intended for use in capital punishment by a state or the federal government cannot be regulated as ‘drugs’ or ‘devices.’ ” The legal opinion, issued this month, comes as states have struggled in recent years to obtain drugs for lethal injections, which remain the country’s primary method of execution even as the number of executions has declined. (McGinley and Berman, 5/14)

Politico: FDA Can’t Control Death Penalty Drugs, DOJ Says

The immediate effect of the Trump administration decision is unclear because of a court injunction issued in 2012 barring the FDA from allowing the importation of a key execution drug, sodium thiopental. Shortages of that drug have led many states to scale back or halt executions in recent years. In a statement, an FDA spokesperson said the agency would “follow the conclusion of the opinion to the extent permissible” by the 7-year-old order, which remains in effect. (Gerstein, 5/14)

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