The FDA has bent over backward to stay out of the execution-drug mess. It even issued a statement to that effect, saying that it wouldn't punish states for importing drugs that aren't agency-approved--and that it wouldn't vouch for their safety or efficacy, either. In essence, washing its hands of the whole thing.
Now, however, the agency faces a lawsuit filed on behalf of six death-row inmates in three states that claims the FDA violated federal law by letting states import the meds without considering their safety. As the Wall Street Journal's Law Blog points out, they're represented by Bradford Berenson, a Sidley Austin partner who served in President George W. Bush's administration.
"The FDA is improperly allowing drugs into the United States even though it won't stand behind their safety and efficacy," Berenson told the WSJ. In a press release announcing the suit, Berenson was quick to note it isn't about the death penalty itself. "Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions," he said. "Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one's interests."
What does FDA say in response? Execution drugs aren't its responsibility. "Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role," the agency said (as quoted by WSJ). "FDA does not verify the identity, potency, safety, or effectiveness of substances imported for this purpose."