From Texas Standard:
Back in July, Texas and Arizona were caught illegally importing a lethal injection drug compound as the product was passing through an airport in Houston. The federal Food and Drug Administration, responsible for food and drug regulation in the United States, has said in the past that importing the drug is illegal.
The Texas Department of Criminal Justice told the Dallas Morning News that the department had a license from the Drug Enforcement Administration saying the state could import the drug.
Douglas Berman, criminal law professor at the Ohio State University, says the consequences for illegally importing the drugs are still questionable.
"It's really a byproduct of what's been a long and sordid tale that states around the country have been dealing with," Berman says. "Texas, interestingly, seemed to be somewhat immune from the challenge that other states have had in securing the drugs."
But that may be changing. The main challenge for states who use the death penalty is that legitimate manufacturers, many who are European, choose not to make the drugs available because of opposition to capital punishment.
"Amazingly, a number of state correction officials have discovered that some quirky guy out of India is offering to provide this material," Berman says. "But [he's] doing so in a way that doesn't comply with federal regulations."
Texas and Arizona weren't the only states to purchase the drugs. Ohio had a similar situation – after recent efforts to purchase the drug from the same source, rather than risking legal trouble, Ohio sent a letter to the FDA and asked for approval.
"It's unclear whether the FDA is prepared to approve this source of these drugs," Berman says. "These are not drugs that the FDA would be seeking to approve to make sure they wouldn't hurt anybody. They're drugs that are specifically designed to help kill somebody."
Could the FDA sanction Texas for trying to import the drug compound? The answer is ambiguous, Berman says.
"My sense is there are a variety of administrative remedies, and maybe even some criminal follow-up that could be done by the United States Department of Justice – but I think it's awfully unlikely," he says. "I think at the end of the day there's unlikely politically to be support for an aggressive follow-up for sanctions or criminal prosecution blocking access to these drugs."