San Francisco – New records handed over by the Drug Enforcement Administration (DEA) to the ACLU of Northern California (ACLU-NC) and the San Francisco Bay Guardian reveal that state prison officials across the country may have broken the law when importing sodium thiopental, an anesthetic used in lethal injections which has been in scarce supply since 2009. (View an interactive map with states that imported the drugs, suppliers, shipment dates, scheduled executions, and other details. View DEA documents and legal papers.)
States, like private companies and the federal government, are required to follow federal law under the Controlled Substances Act and the Food, Drug, and Cosmetic Act when importing execution drugs like sodium thiopental, which is a federally controlled substance. For example, importers must be registered with the DEA and must file a complete DEA Form 236 Declaration for each shipment, requirements that are meant to prevent controlled substances from entering the black market. (Corrections officials have lost track of lethal substances in the recent past.)
The documents show that only two such declarations were filed for the importation of sodium thiopental, from January 1, 2010 to present, which suggests that most of the states that imported this lethal substances failed to comply with this basic legal requirement. The DEA is refusing to release the two Form 236 Declarations that apparently were filed, making it impossible to be sure which importations were covered and even if these importations were legal.
Eight states imported unapproved sodium thiopental and two states got a hold of the drugs after they entered the country (see map). The map also shows where drugs have been seized by the DEA: Alabama, Georgia, Kentucky, South Carolina, and Tennessee. Yet the DEA has failed to seize the drugs from five other states, Arizona, Arkansas, California, Nebraska and South Dakota
Arizona has an execution date set for May 25. Nebraska has an execution scheduled for June 14 with the illegal drugs.
"The DEA is making it impossible to know whether the states are complying with the law and whether DEA is fulfilling its obligation to enforce our nation's drug laws," said Natasha Minsker, Death Penalty Policy Director for the ACLU of California. "Importing sodium thiopental without informing the DEA is a crime. We now know the DEA was poised to go into the Arizona Department of Corrections and seize their drugs, as they did in Georgia, but for some unknown reason they did not. Why did the DEA seize drugs in some states but not others?"
The ACLU of Northern California filed additional legal papers in Federal District Court in San Francisco on Wednesday, arguing that the DEA has not fully complied with its promise to release all documents the public has a right to see under the Freedom of Information Act. "What are they hiding?" added Minsker. "The more we see, the more questions we have."
The new records also reveal that the FDA failed to do its job. The papers show that as of the beginning of November 2010, FDA had no policy in place for dealing with importation, had concerns over the "importation of unapproved drugs" and was treating this as an "emergency issue." Yet in January 2011, the FDA publicly claimed it was releasing the drugs for use by state corrections officials pursuant to a longstanding policy.
California's supply of sodium thiopental expired in late September 2010 and there seemed little chance that the state would be able to get more after the only U.S.-based, FDA-approved manufacturer of the drug (Hospira, Inc.) said it would not make any more until 2011. But on Oct. 6, 2010, the California Department of Corrections and Rehabilitation (CDCR) revealed that it had mysteriously acquired 12 grams of the drug. On Nov. 22, 2010, they announced they had ordered 521 grams more from a foreign source.
This revelation led the ACLU of Northern California and others to file open records requests and investigations to determine the legality and process used by California and other states to acquire lethal injection drugs.
All relevant documents and a timeline are available online at www.aclunc.org.