Must the Drugs Used In Executions Be Approved as Safe and Effective (83-1878)
![handle is hein.journals/prvw11 and id is 143 raw text is: ADMINISTRATIVE LAW
Must the Drugs Used in Executions
Be Approved as Safe and Effective?
by E. Donald Elliott
Margaret M. Heckler,
Secretary of Health and Human Services
V.
Larry Leon Chaney
(Docket No. 83-1878)
Argued December 3, 1984
Do prisoners sentenced to die by lethal injection have
a right to force the federal Food and Drug Administra-
tion to determine whether the drugs used in their execu-
dons are safe and effective? That is the issue the
Supreme Court will be asked to decide in Heckler v.
Chaney, a case brought by eight convicted murderers
sentenced to death by lethal injection in Oklahoma and
Texas.
ISSUE
The narrow issue in the case is whether the United
States Court of Appeals for the District of Columbia
acted illegally in October, 1983, when it ordered the
federal Food and Drug Administration (FDA) to begin
investigating the drugs used by states in carrying out
executions. The implications of the case extend far be-
yond capital punishment, however. The ultimate issue is
whether judges may impose their priorities and inter-
pretations of law on administrative agencies like the
FDA, or whether agencies are free to set enforcement
policies for themselves.
FACTS
Since 1977, fifteen states have adopted lethal injec-
don as a method of execution. Its proponents, including
President Reagan, advocate lethal injection as a more
dignified and less painful method of execution; its op-
ponents counter that it causes a slow, painful death.
Over 450 persons are now under a sentence of death in
states that recognize lethal injection as a method of
execution.
The federal Food, Drug and Cosmetic Act prohibits
E. Donald Elliott is a Professor of Law, Yale Law School, 401-
A Yale Station, New Haven, CT 06520; telephone (203) 387-
4279. From January 1, 1985 - May 31, 1985, he will be a
Visiting Professor of Law at the University of Chicago Law
School, 1111 E. 60th Street, Chicago, IL 6063 7; telephone
(312) 962-9494.
distributing any drug in interstate commerce unless it
has been determined by the FDA to be safe and effec-
tive for a particular use. The drugs used in executions
have been approved by the FDA for certain purposes,
but not for putting human beings to death.
In December of 1980, prison inmates convicted of
murder and sentenced to die by lethal injection in Texas
and Oklahoma petitioned the federal FDA to block their
executions on the grounds that the states proposed to
employ drugs that had not been approved by the FDA
for executing human beings. Attorneys for the prisoners
also asked the FDA to seize the drugs, and to bring
criminal prosecutions against state prison officials who
knowingly buy, possess, [sell] or use drugs for the
unapproved use of lethal injections in violation of the
federal Food, Drug and Cosmetic Act.
On July 7, 1981, FDA Commissioner Arthur Hull
Hayes, Jr. rejected the prisoners' request for an investi-
gation. Hull maintained that the FDA did not have legal
authority to regulate executions, and in any event, he
said that even if the federal food and drug act was
technically applicable, the FDA had inherent discretion
to decline to pursue ... enforcement against state prison
officials.
The prisoners then filed suit in the United States
District Court for the District of Columbia, demanding
that the court order the FDA to enforce the federal food
and drug law against state prison officials. On August
30, 1982, District Judge Norma Holloway Johnson
threw the prisoners' case out of court. Judge Johnson
based her decision on the well-established legal prin-
ciple that decisions by the Executive not to investigate or
prosecute particular violations of the law are essentially
unreviewable by the courts.
On appeal, the court of appeals reversed by a 2 to 1
vote. For the majority, Judge J. Skelly Wright stressed
that the FDA already regulates the drugs used by veteri-
narians to kill animals to make sure that they do not
cause unnecessary suffering, and noted that the prison-
ers had submitted evidence from recognized medical
experts that the drugs used in executions posed a
substantial threat of causing torturous pain. Judge
Wright directed the lower court to reinstate the case and
to order the FDA to fulfill its statutory function.Judge
A. Scalia dissented, arguing that the court was intruding
on powers that belong to Congress, the Executive
Branch and the states. By a 5 to 5 vote, the full appeals
court voted not to overturn the 2 to I decision.
Issue No. 6 131](ViewImageLocal?handle=hein.journals/prvw11&div=57&collection=&method=preview&ext=.png&size=3)
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Must the Drugs Used In Executions Be Approved as Safe and Effective (83-1878)
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