In July 2015, Texas imported 1,000 vials of sodium thiopental from India to use in executions. The shipment was confiscated at the airport in Houston.
Texas officials said the drugs came from a unnamed “foreign distributor” and they had a license from the DEA to import the drugs.
However, the FDA has consistently maintained that importing sodium thiopental is illegal because the drug is not approved in the United States.
Three states — Texas, Arizona, and Nebraska — did so anyway, and had shipments seized at airports in Phoenix and Houston. An investigation by BuzzFeed traced some of the drugs to a suspicious salesman in India.
That was 17 months ago. In a lawsuit filed on behalf of the Department of Corrections on January 3, Texas Attorney General Ken Paxton is seeking to force the FDA to make a decision.
“There are only two reasons why the FDA would take 17 months to make a final decision on Texas’ importation of thiopental sodium: gross incompetence or willful obstruction,” Paxton said in a statement.
Citing “law enforcement” exemptions to FDA drug-approval requirements, Paxton warned:
My office will not allow the FDA to sit on its hands and thereby impair Texas’ responsibility to carry out its law enforcement duties.”
No executions in Texas have been prevented due to the drug being detained by federal officials, a spokesman for the Texas Department of Criminal Justice told The Washington Post.
Sodium thiopental is one part of a typical 3-part cocktail of lethal injection drugs. It is a fast-acting barbiturate anesthetic that causes rapid loss of consciousness before the other ingredients paralyze muscles, stop the heart, and cause death.
In 2011, the only FDA-approved manufacturer of sodium thiopental stopped making it because they could not legally provide it to hospitals and withhold it from being used in lethal injections.
That same year, Texas switched to another barbiturate called phenobarbitol, which is now used instead of sodium thiopental in most lethal injections.
Texas, a historic bastion of capital punishment, executed 7 inmates out of a nationwide total of 20 executions in 2016. Lethal injections in the U.S. and Texas are at their lowest levels since the 1990s.