Death-row inmates in several states are carrying on the challenge first filed under Cook’s name, though of course none will be present Monday when a top appellate court debates the case that’s one of many attacking lethal injection.
“They’re trying to conduct this war on as many fronts as possible,” said Kent Scheidegger, legal director for the Sacramento-based Criminal Justice Legal Foundation, a nonprofit public interest law group. “I think this one is important for the way the inmates went after the death penalty by suing the FDA.”
Scheidegger, a death-penalty supporter, filed a friend-of-the-court brief that prompted additional questions from the U.S. Court of Appeals for the District of Columbia Circuit. A three-member appellate panel of the court will hear oral arguments Monday in the lethal-injection drug case.
The inmates argue that the FDA acted improperly in 2010 when it allowed some state prison systems to import foreign-made sodium thiopental for use in executing prisoners. Though states have since been substituting other drugs for the fast-acting sedative, the legal challenge continues, with the potential to reach even beyond the death-penalty realm.
“This case is not about halting executions, but about ensuring that illegal drugs are not used in carrying out otherwise legal executions,” attorney Eric A. Shumsky, who represents the death-row inmates, said Friday.
In turn, the appeal being heard Monday is only part of a much broader set of challenges to how executions occur in the 35 states that, along with the federal government, currently use lethal injection. Some of these larger issues have reached the Supreme Court, and others may get there eventually.
In a 2008 Kentucky case involving convicted police killers Ralph Baze and Thomas Clyde Bowling Jr., the Supreme Court upheld the state’s use of a three-drug lethal-injection combination that included sodium thiopental. Baze and Bowling, sentenced to death for murdering two Powell County deputy sheriffs, had unsuccessfully argued that the three-drug injection amounted to cruel and unusual punishment because of the risk for errors.
As states shift to other drugs, said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit death-penalty information and research group, they now face “quite a few challenges” questioning other elements such as where the drugs come from.
“Every aspect of California’s lethal-injection protocol is being litigated,” said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation.
In the three-drug protocol long employed by many states, sodium thiopental induces general anesthesia. Another drug paralyzes the condemned inmate, and the third stops the heart.
A domestic manufacturer stopped producing sodium thiopental in 2009, prompting states, including Idaho, Kentucky, Missouri and Texas, to switch to a different drug protocol. California, Tennessee and Arizona decided, at least initially, to import the sedative.
Arizona has since switched to using one drug, and California Gov. Jerry Brown (D) last year ordered state prison officials to consider making the same move. Thornton said Friday that review is still underway.
Last year, a Washington-based federal judge ruled that the FDA should not have permitted importation of a drug not approved for domestic use. In response, California officials denounced the ruling as “contrary to law,” and federal officials contended that they were acting with appropriate administrative leeway.
“FDA exercises enforcement discretion in the context of drug importation in a range of circumstances, a practice that has repeatedly been brought to Congress’s attention,” Justice Department attorneys said in a legal brief.