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California Agency Rejects Proposed Execution Protocol

In a new setback to efforts to restart executions in California, the state's Office of Administrative Law (OAL) has rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is responsible for reviewing regulatory changes proposed in California, issued a 25-page decision of disapproval, citing inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments. The agency gave the Department of Corrections four months to address problems in the protocol. The proposed protocol would have changed California's previous three-drug procedure to a one-drug procedure, calling for 7.5 grams of one of four barbiturates. The OAL questioned whether the 7.5 gram dose met California's requirement that a regulation be "necessary," noting that corrections officials had said 5 grams of the barbiturate would be lethal and had provided no rationale as to why they chose a larger dose. It also requested clarification of numerous ambiguities in the new regulations, including the steps taken by correctional officials in the days leading up to the execution, what steps would be taken during the course of an execution if the prisoner did not immediately die, and what would be involved in monthly inspections of the execution chamber. Among the inadequate responses to public comments, the OAL noted that "[t]he Department's response does not address the issue of 'using methods that are untested or poorly understood' or 'human experimentation' as it pertains to the use ... for lethal injection purposes" of two of the drugs in the protocol. Executions in California have been on hold since 2006 because of legal challenges to the state's lethal injection procedure. In November, voters narrowly passed Proposition 66, which proposes to speed up executions. Implementation of that proposition was blocked by the California Supreme Court, pending the outcome of a lawsuit.


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Texas Sues Food and Drug Administration Over Seizure of Execution Drugs

The Texas Department of Criminal Justice filed suit on January 3, 2017 against the federal Food and Drug Administration (FDA) over the FDA's continued detention of drugs Texas had attempted to import for executions. In October 2015, Texas and Arizona attempted to import sodium thiopental, an anesthetic commonly used in executions prior to 2010, from Harris Pharma, a supplier in India. The FDA halted both shipments, saying that their import violated federal law. The FDA does not comment on litigation, but has previously said that sodium thiopental has no legal uses in the United States. The agency has indicated in the past that an injunction issued by a federal district court in Washington in 2013, and which later was upheld by the United States Court of Appeals for the District of Columbia Circuit, requires it to halt importation of the drug. No U.S. manufacturer currently produces sodium thiopental, and so the drug is unavailable from domestic sources. Texas argues that the drug should be allowed to be imported under a "law enforcement exemption" to usual importation rules. In a statement about the lawsuit, Texas Attorney General Ken Paxton attacked the agency, saying "[t]here 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 has used an alternative drug, pentobarbital, in executions since 2012. A spokesman for the Texas Department of Criminal Justice said, "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process."


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