Arizona correction officials think they’ve found a solution to the nationwide shortage of lethal injection drugs: Bring your own. The state’s new death penalty protocol invites inmates’ lawyers to come to executions equipped with their clients’ own deadly cocktail of drugs.
The new execution protocol, unveiled by Corrections Director Charles Ryan last month, gives defense attorneys the option to obtain the lethal injection drugs on their own, as long as they, or a third party acting on their behalf, can get enough pentobarbital to “successfully implement” a one-drug protocol, or enough sodium thiopental for a three-drug protocol.
The guidelines specify the drugs must be obtained from a “certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier.”
This means that death row inmates or their families now have the option to find and pay for lethal injection drugs — which are neither cheap nor easy to come by.
The trouble is it might not be possible under existing law.
“This is a bizarre notion that calls for actions that are both illegal and impossible,” Dale Baich from Arizona’s office of the Federal Public Defender told the Arizona Republic. “A prisoner or prisoner’s lawyer cannot legally obtain these drugs or legally transfer them to the Department [of Corrections]. Under the federal Controlled Substances Act, we cannot imagine a way to obtain the drug. Those that obtain controlled substances illegally go to prison.”
Arizona, like many other death penalty states, has had difficulty getting its hands on traditional death penalty drugs like pentobarbital and sodium thiopental, in part due to the refusal by European labs to export them to the United States to be used in executions.
As a result, states have been scrambling to come up with alternatives. Many, like Arizona, turned to midazolam as an alternative to sodium thiopental in a three-drug protocol. But midazolam has become increasingly controversial, due to its involvement in several high-profile botched executions.
Arizona has not carried out an execution since July 2014, when corrections officials used midazolam to execute Joseph Wood, who reportedly “gasped for air” for almost two hours before dying (the process should take seven minutes).
After Wood’s execution, which invited widespread scrutiny by anti–death penalty groups and media, Arizona’s Department of Corrections amended its protocol to exclude midazolam. Last June, officials informed a federal court that they were unable to obtain either sodium thiopental or pentobarbital, and were “presently incapable of carrying out executions.”
The state’s new protocol — inviting inmates’ attorneys to get their own drugs — was reportedly designed in response to judicial orders in two federal court cases challenging the use of midazolam.
But that wasn’t without trying. In 2015, after the Danish manufacturer blocked the use of pentobarbital in executions four years earlier, Arizona paid nearly $27,000 to illegally ship sodium thiopental as an alternative from India. However, their efforts were thwarted; the shipment, flown via British Airways, was blocked by federal officials at Phoenix Sky Harbor airport.
There are currently 119 inmates on Arizona’s death row.