The Food and Drug Administration, which has long maintained that it has nothing to do with drugs used in executions, has quietly helped Arizona and California obtain a scarce type of anesthetic so the states could continue putting inmates to death.
The shortage of sodium thiopental has disrupted executions around the country. But newly released documents show the FDA helped import it from Britain.
Most state prison systems use sodium thiopental to put inmates to sleep before administering pancuronium bromide, a paralyzing agent, and potassium chloride, which stops the heart.
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The sole American manufacturer, Hospira Inc. of Lake Forest, Ill., in suburban Chicago, has blamed supplier issues for its inability to make the drug, which is marketed to render patients unconscious, not for lethal injections. Any remaining batches expire this year.
After Arizona officials explained their need, an FDA official recommended a shipment of the drug "be processed expeditiously to us as it was for the purpose of executions and not for use by the general public."
The information is contained in an e-mail from an Arizona prison official to the California prisons agency obtained by the American Civil Liberties Union through a public records request. The ACLU then posted it online.
The ACLU accused the FDA of trying to hold two contradictory positions at once.
"The FDA is actively assisting these states, but they're not enforcing the law, and they're not doing anything to determine that the drugs are what they're claimed to be and that they work properly," said Natasha Minkser, death penalty policy director for the ACLU's Northern California chapter.
A federal lawsuit in Arizona challenges the use of overseas drugs, saying they may be substandard and could lead to botched executions if they do not put an inmate to sleep properly.
The FDA would not comment on its role in helping either state.
The agency is required by law to assure the safety and effectiveness of drugs imported for medical purpose. But agency officials maintain that their oversight does not extend to drugs for executions, citing a 1985 Supreme Court ruling.
"Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role," agency spokesman Christopher Kelly said.
Records show many states have scrambled to find enough of the drug.
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When the prison system is looking for drug supplies, it's common practice to contact local pharmacies, said Washington prisons spokeswoman Maria Peterson.
California tried to recruit private doctors who could procure the drug and went from state to state looking for supplies, including Arizona, Indiana, Nevada, Oklahoma, Texas and Virginia, records show.
The state also contacted dozens of hospitals and general surgery centers, Veterans Administration hospitals and the federal Bureau of Prisons. It even looked into obtaining a supply from Pakistan.
At least three states — Arizona, Arkansas and Tennessee — appear to have gotten supplies of the drug from England, records showed. The documents did not indicate whether the FDA was involved in the Arkansas or Tennessee purchases.
Arizona sought the FDA's help as it prepared to execute Jeffrey Landrigan for the 1989 murder of a Phoenix man.
Arizona then provided California with 12 grams of sodium thiopental in September. In December, California paid $36,415 for 521 grams of the drug from a British manufacturer. The drug has yet to arrive.
Arizona acknowledged last fall getting drugs from an English company.
"We have followed the lead of Arkansas and purchased the drugs from a company in London," Charles Flanagan, deputy director of the Arizona Department of Corrections, said in a Sept. 28 e-mail to John McAuliffe, a California prisons official.
Arkansas prisons spokeswoman Dina Tyler declined to comment.
Texas, with the country's busiest death chamber, has enough of the drug for 39 executions, but its supply expires in March, according to records obtained by The Associated Press through a public records request.
Missouri has said its dwindling supply expires this year, too.
Death penalty opponents have argued that expired drugs could be weakened and hence less effective.
Virginia, which executed a woman in late September, had an expired batch in early August that it tried unsuccessfully to get the FDA to approve, according to e-mails obtained by the ACLU from the California prison system.
"They ran into brick wall when they tried this with the FDA," the California e-mail said.
Virginia executed a woman about six weeks later. It was unclear whether any expired drugs were used. A prisons spokesman declined to comment.
In early 2010, Tennessee shared its sodium thiopental with Georgia and Arkansas but scrambled by midyear to find its own supply, with a fall execution pending.
In September, the warden of Riverbend Maximum Security Institution, where Tennessee conducts executions, ordered sodium thiopental, apparently from a British company. It was delivered just days before a scheduled execution.
At least one state has managed to avoid the shortage by switching from sodium thiopental to pentobarbital, a drug commonly used to put animals to sleep. Oklahoma has conducted two executions with the new drug.
Welsh-Huggins reported from Columbus, Ohio. Associated Press writers Bob Johnson in Montgomery, Ala., Kristin Hall in Nashville and Jim Salter in St. Louis contributed to this report.
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