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Death Penalty Drug: Death Row Inmates Sue FDA

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By Stephanie Rabiner, Esq. on February 08, 2011 9:10 AM

While there are many arguments in the death penalty debate, our duty as a nation is to make sure that the process remains humane. The Food and Drug Administration, however, may have just called even that into question.

Thiopental, a so-called death penalty drug, has seen better days. The anesthesia, designed to prevent inmates from feeling any pain, has been difficult for states to acquire, delaying executions across the country. And now that Hospira, Inc., the drug's maker, has announced that it will be discontinuing production, states will be scrambling even harder.

This is why states using thiopental petitioned the FDA to allow them to import the thiopental from overseas. And it agreed. And then the FDA got sued.

The FDA is required by law to ensure that only safe drugs enter into the United States. They are mandated to screen all shipments of drugs entering the country for safety and effectiveness. However, the agency said that it will permit the importation of the death penalty drug, but would not ensure its safety.

The lawsuit alleges that the FDA does not have the authority to do this--that ignoring its mandate to inspect and ensure quality of all imported drugs makes the action illegal. It would also probably make the use of any thiopental imported under the program unconstitutional.

The Eighth Amendment prohibits cruel and unusual punishment. The death penalty only skates by because inmates are knocked out during the process and allegedly can't feel any pain. If there is any question as to the effectiveness of the drug, its use would run afoul of countless court opinions that have required proof that death will be painless.

The inmates' attorneys are asking the court to prevent the FDA from permitting unchecked shipments into the country. Regardless, the shortages of thiopental are only going to get worse, meaning states will have to find an alternative drug. That drug, too, will also have to make its way through the courts.

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