Texas Sues Over Feds' Withholding Of Overseas Execution Drugs

Texas Attorney General Ken Paxton says only "gross incompetence or willful obstruction" explain the delay on a final decision by the US Food and Drug Administration as to whether the state can import execution drugs.

WASHINGTON — The Texas Department of Criminal Justice on Tuesday sued the federal government over the US Food and Drug Administration's attempt to stop the state from importing execution drugs from overseas.

The lawsuit follows a year-and-a-half standoff between several death penalty states and the federal government over execution drugs that the FDA maintains are illegal to import.

The state argues that the federal government has exhibited "unreasonable delay" in making a final decision as to whether the execution drugs can be imported.

Texas attempted to import sodium thiopental from a salesman in India in July 2015, but the FDA detained shipment at the airport and has not released it to the state since that time. Arizona officials attempted to make a similar shipment, which also was detained.

The FDA maintains that the shipment is illegal under an injunction issued by a federal court in DC that was upheld by the US Court of Appeals for the DC Circuit.

The state challenged the detention — retaining the law firm of Alston & Bird and the services of a former FDA investigator, Benjamin England — to do so, but the FDA has not issued a final decision on whether the drug can be imported.

On Tuesday, Texas went to federal court — in the Southern District of Texas — asking for an order forcing the FDA to reach a final decision on the admissibility of the drug.

"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," Texas Attorney General Ken Paxton said in a statement announcing the lawsuit.

Texas, along with Arizona and Nebraska, each purchased 1,000 vials of sodium thiopental from a man in India named Chris Harris, sending him more than $75,000 altogether. Harris claims his company, Harris Pharma, is a drug manufacturer, but a BuzzFeed News investigation adds skepticism to his claim.

The facility he registered with the DEA is a former apartment that his landlord says he left owing rent. The facility he registered with the FDA is a small office space he rents, and the rental company said he cannot make drugs there.

Instead, according to documents obtained by BuzzFeed News, Harris purchased the drugs from a manufacturer in India, and then placed his own Harris Pharma label on them, adding that the sodium thiopental is “For law enforcement purpose only.”

That disclaimer is key to Texas’ argument that the drugs should be allowed in. The FDA has an exemption for drugs that would normally be illegal to import, but would instead be used for research or for “law enforcement.”

“In this case, the drugs at issue fall within the [law enforcement] exemption,” the lawsuit states.

“Each vial of drug offered for import by TDCJ and at issue in in this case bears a label identifying the drug as thiopental sodium and containing the legend: ‘For law enforcement purpose only.’”

The FDA declined to comment on the case.

This isn’t the first time Harris has sold drugs to death penalty states. He typically requires states to purchase large orders and to pay in advance, but his drugs have never actually been used in an execution after questions are raised about the legality of it.

Nebraska also purchased drugs from Harris two years ago. When the drugs never made it out of India due to their illegality, Nebraska attempted to get a refund. Harris refused.

“Hope this issue does not spoil the relationship between our organisations and we are able to do business in the future,” Harris wrote back.

Attorneys general from Nebraska and Arizona, who each purchased 1,000 vials from Harris in 2015, did not respond to a request for comment on whether their states would join the lawsuit or file their own. Arizona, however, did retain the services of Alston & Bird, as well as England, previously.

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