102 Iowa L. Rev. 761 (2017)

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Abstract

This Note traces the history of the lethal injection drug shortage and its impact on how states carry out the death penalty. Though this topic has received much attention in recent years, relatively little attention has been paid to the D.C. Circuit’s decision in Cook v. FDA, which exacerbated the shortage. In Cook, the D.C. Circuit enjoined the FDA from exercising its enforcement discretion to allow the importation of sodium thiopental, the primary anesthetic used by states in lethal injection executions. This decision is significant because it effectively required the FDA to ban the importation of sodium thiopental, forcing states to find other ways to carry out executions. Many states have turned to new drugs and manufacturers, while others have returned to past methods of execution. However, states’ use of alternative drugs and manufacturers has had disastrous consequences, and the return to old methods of execution constitutes an unacceptable regression towards inhumane and barbaric punishment. Thus, this Note argues that states should make every effort to obtain sodium thiopental. Potential avenues to obtain the drug include adhering to the FDA’s regulations or litigating against the FDA’s regulations. Renewed access to sodium thiopental will resolve many of the problems plaguing the administration of lethal injection.