Federal Judge Stays AZ Execution

Last week we wrote about the impending Arizona execution of Jeffrey Landrigan. Landrigan alleged that the sodium thiopental Arizona planned to inject into Landrigan was not made by Hospira, Inc., the one U.S. company authorized to manufacture it. In other words, it came from a foreign source. He sought a stay and an order compelling the state to disclose the origin of the drug. The Arizona Supreme Court denied both requests.

With only 18 hours left before the execution, a federal judge today granted Landrigan a stay and ordered Arizona to immediately disclose the source of the drug. The court's 19 page ruling is here.

According to the Arizona Republic, the drug came comes from Great Britain. [More...]

From the Court's ruling:
This Court has never experienced a situation such as this where a defendant opposes a motion for emergency relief by claiming it has the evidence necessary for resolution of the matter but that evidence should not be produced. Defendants have neveradequately explained their rationale for withholding all evidence regarding the drug, and Defendants have now created a situation where a seemingly simple claim that could have been resolved well in advance of the execution must be resolved in five days – and now only eighteen hours due to further protractions created only be Defendants – without the benefit of Plaintiff having the opportunity to present fact-based arguments.

Based on the record, the Court concludes that use of sodium thiopental from a non-FDA-approved source raises issues regarding its efficacy and possible side-effects. The Court is unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug’s manufacture or that has no history of contamination in manufacturing the product. Absent such evidence, the Court must accept Plaintiff’s factual showing that such drugs are more likely to contain harmful contaminants....Consequently, Plaintiff has shown as much likelihood of success as he possibly could given Defendants’ obstructive behavior.

The Judge found the 8th Amendment doesn't specifically require FDA approved drugs be used. But, it said:

[T]he issue here is not simply FDA approval. Instead, the issue is whether there is a sufficient level of confidence that the sodium thiopental Defendants plan on using to sedate Plaintiff does not create a substantial risk of harm. FDA-approval is relevant in that drugs manufactured under FDA-guidelines are likely to perform as expected; drugs manufactured by non-FDA approved sources might not benefit from such a presumption. Without the assurance of FDA-approval, the Court is left to speculate whether the non-FDA approved drug will perform in the exact same manner as an FDA-approved drug and whether the non-FDA approved drug will cause pain and suffering. This is not a factual issue the Court can resolve by adopting Defendants’ assurances that sodium thiopental “is simply a chemical compound” and the source of that compound is irrelevant.

The Court also found the balance of equities weighed in Landrigan's favor:

The potential harm to Plaintiff, on the other hand, is patent. In the absence of injunctive relief, Plaintiff will be executed in eighteen hours using a drug of unknown quality that was obtained from an unidentified, non-FDA approved source. Because Defendants have refused to provide information to Plaintiff about the source of the drug or the manufacturer, this Court cannot say that Plaintiff faces no significant risk of suffering serious harm.
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    Sounds like (5.00 / 1) (#1)
    by Makarov on Tue Oct 26, 2010 at 12:14:27 AM EST
    a good opportunity to introduce in a brief all those comments from the FDA and other agencies that arose in 2009 when some Dems suggested we permit re-importation of drugs from Canada.