Virginia officials have asked that a challenge to lethal injection alleging executioners are engaging in the unlicensed practice of medicine be dismissed as frivolous.
"Lethal injection is not the practice of medicine, pharmacy or anesthesiology because (the executioners are) not preventing, diagnosing or treating any ailment," asserts a brief from the Virginia Attorney General's Office.
Instead, the brief, filed in Richmond Circuit Court last week, argues that "in carrying out a court's criminal sentence of death, (executioners are) committing a judicially authorized homicide with the specific intent to end, not save, a life."
Last month, two Northern Virginia lawyers filed a complaint in Richmond Circuit Court against prison officials.
The defendants, the complaint states, are not authorized under state law to request, dispense, distribute, give and/or obtain or intravenously administer as a general anesthetic controlled prescription substances to condemned inmates.
In response to the attorney general's brief, the lawyers wrote that they do not contend the executioners are practicing medicine, but rather the methods they use illegally incorporate the practices of medicine, pharmacy and anesthesiology.
Meanwhile, in an unrelated development, 15 state attorneys general, including Virginia's Ken Cuccinelli, are asking U.S. Attorney General Eric Holder to appeal a court decision blocking the importation of an execution drug.
Sodium thiopental, an anesthetic, renders condemned inmates unconscious and is the first of three drugs used in lethal injections. It is no longer manufactured in the U.S., must be obtained from elsewhere and is in short supply.
Asked where Virginia obtained sodium thiopental, Larry Traylor, a spokesman for the Virginia Department of Corrections, said he could not discuss the state's execution procedures.
But, he said, "the Virginia Department of Corrections is tasked by the General Assembly to carry out court-ordered executions and has the means to do so."
On March 27, U.S. District Judge Richard Leon, in Washington, ruled that the U.S. Food and Drug Administration has not approved foreign-made versions of the drug, so it cannot be imported lawfully into the U.S.
He ordered the FDA to notify immediately all state correctional departments with possession of foreign-made sodium thiopental that its use is prohibited by law and that it must be returned to the FDA immediately.
A letter Monday from Oklahoma Attorney General Scott Pruitt ? signed by Cuccinelli and 13 other state attorneys general ? asks Holder to appeal Leon's decision.
A spokesman for the Virginia Attorney General's Office said the ruling is at odds with federal policy and U.S. Supreme Court precedent, and that the ruling could impede the Department of Corrections from carrying out death sentences as required by law.
It appears no executions are scheduled in Virginia, which has about a dozen death row inmates and has conducted 79 executions by injection since 1995. Virginia uses the same three-drug procedure as other states.
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