The state of Arizona filed a formal appeal to the FDA over its seizure of an execution drug, according to documents released Wednesday.
The FDA stopped the nearly $27,000 shipment of sodium thiopental in July at the Phoenix airport, claiming that it is illegal to import the drug.
But attorneys for the state say the FDA doesn’t have the authority to stop the shipment.
In a letter dated Oct. 23, a private attorney hired to represent the state argues that the importation does not violate the rules the FDA cited in its withholding of the drug.
State officials sought the drug after changing its execution protocols following the drawn-out death of convicted murderer Joseph Rudolph Wood.
Wood took nearly two hours to die after being injected with a combination of midazolam, a sedative, and hydromorphone, a painkiller. State officials have since changed execution protocols twice, ending the use of that two-drug combination.
The FDA says it is reviewing appeals by Arizona and also Texas, where officials also tried to import the drug without success.
“The FDA will follow standard importation procedures, which allow for the importer of the detained products to offer testimony as to why the shipment is in compliance with the Federal Food, Drug, and Cosmetic Act and should not be refused entry,” spokesman Jeff Ventura said in a written statement. Venture said the FDA is currently evaluating Arizona’s and Texas’ appeals. It is unclear how long that process can take.
Meanwhile, Arizona officials have taken the first step to resume executions, which were put on hold following Wood’s execution in July 2014. The state can’t seek death warrants until it resolves a lawsuit filed by Wood and other death row inmates over the secrecy of execution drugs and their manufacturers and suppliers. That lawsuit was placed on hold through an agreement by both parties. However, the state is asking a federal judge to resume it, but a hearing has not yet been scheduled.
The state of Texas also has tried to import sodium thiopental without success.
Texas Department of Criminal Justice spokesman Jason Clark said the state legally purchased the drugs and obtained an import license from the federal Drug Enforcement Administration before the drugs were shipped.
Texas has not used sodium thiopental in recent years, but prison officials want to “explore all options, including the continued use of pentobarbital or alternate drugs to use in the lethal injection process,” Clark said.