Bring Your Own Execution Drugs, Arizona Tells Death Row Lawyers – Courthouse News Service
The Arizona Department of Corrections has taken a novel approach to the increasingly difficult task of procuring the necessary drugs to execute inmates: encouraging attorneys to obtain lethal-injection drugs for their clients on death row.
The one-paragraph proposal, released last month in a 36-page “Execution Procedures” manual, instructs inmates’ counsel or family members to bring enough pentobarbital or sodium thiopental – barbiturates injected in high doses to kill condemned inmates – if they can get them “from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier.”
A third protocol consists of sodium thiopental, a muscle relaxant and potassium chloride. Corrections department director Charles Ryan chooses which protocol to use for each execution.
The department did not respond to requests for comment about the new policy.
“I really think it’s unacceptable,” said Larry Hammond, a prominent criminal defense lawyer whose been working on capital cases since the 1970s who also founded the Arizona Justice Project. “It’s just not imaginable to me in a civilized society that we would be encouraging the lawyer for a condemned person to participate in the execution of his client.”
Hammond said lawyers can’t legally obtain drugs like sodium thiopental or pentobarbital anyway.
Over the last six years, supply chains of lethal-injection drugs have collapsed under global pressure from death penalty opponents; it’s now virtually impossible for prisons to source the drugs. The Guardian and other outlets speculated the bring-your-own-drugs protocol is how Arizona is addressing the shortage.
Sodium thiopental is no longer made in the United States and is illegal to import. In 2015, the U.S. Food and Drug Administration blocked a shipment of the drug destined for Arizona, which had paid $27,000 to import it from India.
Danish pharmaceutical company Lundbeck restricted access to Nembutal, a name brand for pentobarbital, for executions after widespread public protest in 2011 and sold the rights to the drug to Illinois-based Akorn Inc. Pharmaceuticals the same year. In 2015, Akorn said they would bar the drug for use in capital punishment.
But Hammond doubted the sincerity of the Arizona proposal, calling it “more theatrical than real” and likening it to “schoolyard bullying.”
Arizona has not executed anyone since 2014, when convicted murderer Joseph Wood was administered 15 rounds of the sedative midazolam and painkiller hydromorphone – a two-drug protocol implemented that year amid controversy after sodium thiopental became unavailable. According to witnesses, Wood was strapped to a gurney for almost two hours, snorting and gasping for air.
Meanwhile, Wood’s lawyers filed an emergency motion attempting to halt the execution. It was denied shortly after he died.
Prior to Wood’s execution, the U.S. Supreme Court cleared an injunction entered by the Ninth Circuit that would have required Arizona to reveal its sources for midazolam and hydromorphone and the credentials of the executioners.
Shortly after Wood’s death, then-Gov. Jan Brewer called for an investigation of the procedure; corrections officials maintained Wood remained heavily sedated and did not suffer throughout the procedures.
“The report is clear that the execution of inmate Wood was handled in accordance with all department procedures, which, as the report states, either meet or exceed national standards,” corrections chief Ryan said in a statement. “It was done appropriately and with the utmost professionalism.”
Regardless, as part of a joint stipulated settlement last December, the department vowed to never use midazolam or any other benzodiazepine in a lethal injection again.
Death penalty opponents believe Wood indeed suffered.
“Scientific evidence shows that this class of drugs is not an appropriate drug for use in lethal injection executions. Time after time, midazolam has failed to keep condemned prisoners adequately anesthetized and to bring about a quick, humane death,” Dale Baich, a federal public defender who represented Wood, said in a statement.
Hammond believes the corrections department came up with the new protocol as a put-on, in part due to the backlash it received after Wood’s execution.
“To even suggest that you could have a lawyer assist in facilitating the execution seems to be the exact opposite of what a lawyer should do,” Hammond said. “Frankly, I think shows a real insensitivity to the role of lawyers in a capital system.”
Arizona currently has 119 inmates on death row.