The Death Penalty in the OSCE Area Moratorium At the time of writing, the Food and Drug Administration (FDA) was appealing a case concerning its importation of sodium thiopental, a lethal injection drug. In 2011, the sole U.S. manufacturer of sodium thiopental ceased production of the drug, which was being used as an anesthetic in lethal injection executions. Shortage of the drug caused states to seek foreign suppliers. Death row inmates in Arizona, California and Tennessee subsequently filed a suit against the FDA, alleging that it had breached its responsibility to prevent unapproved sodium thiopental from entering the United States. In February 2012, the Federal District Court in Washington D.C. barred the import of the drug, finding that the FDA had not approved it for safety and effectiveness, as required by law. District Judge Richard Leon stated that this would create an “unnecessary risk” that prisoners “will not be anesthetized properly prior to execution”.97 The Court ordered the FDA to immediately inform any state correctional departments with foreign-manufactured thiopental that its use is prohibited by law and that the drug must be returned to the FDA. In June 2012, the Arkansas Supreme Court struck down the state’s Methods of Execution Act (2009), after finding that the state’s Corrections Department had unfettered discretion as to how it administered the death penalty.98 The Court ruled that the Legislature must set the quantity and type of drugs in a lethal injection. The state’s 37 death row inmates will not be executed until the ruling is implemented. The Federal Government has not carried out an execution since 2003. In 2006, three federal co-defendants were granted indefinite stays of execution, after alleging that the federal lethal injection practice violated the Eighth Amendment, which prohibits cruel and unusual punishment. Another stay was granted in 2007. Since then, no new execution dates have been set for these individuals. In July 2011, the Federal Government announced that it would revise its death penalty procedures.99 A U.S. Department of Justice official reportedly stated that the modification of the protocol was due to the lack of availability of sodium thiopental. No indication was given at the time as to when the new protocol would be completed.100 The United States military has not executed anyone since 1961.101 97  “FDA is appealing court bar to drug used in executions”, Bloomberg, 25 May 2012, <http://www.bloomberg.com/ news/2012-05-25/fda-to-appeal-court-ruling-banning-drug-used-in-execution.html>. 98  “Arkansas court upends death penalty”, 22 June 2012, The New York Times, <http://www.nytimes.com/2012/06/23/ us/arkansas-justices-strike-down-death-penalty.html>. 99  “Feds plan changes to death penalty procedure”, Politico, 29 July 2011, <http://www.politico.com/blogs/joshgerstein/0711/Feds_plan_changes_to_death_penalty_procedure.html>. 100  Ibid. 101  U.S. Response, op. cit., note 88. 20