Arizona DOC Tells Death-Row Inmates They Can Bring Own Execution Drugs

Published: Tuesday, February 28, 2017 - 4:05pm
Updated: Tuesday, February 28, 2017 - 10:43pm

The last time a death-row inmate was executed in Arizona, it became a national news story. Convicted killer Joseph Wood was given 15 doses of a sedative and a pain killer at his execution, but the cocktail didn’t work right away. It took nearly two hours for him to die.

Since then, executions in Arizona have been on hold until a lawsuit over how the state carries out executions is resolved.

But, Wood’s execution has also brought to light a bigger challenge facing states that carry out the death penalty: finding execution drugs.

The reason Wood was given that particular cocktail is because for years, there has been a shortage of execution drugs, and some pharmaceutical companies are refusing to sell the drugs to states.

And now, the Arizona Department of Corrections has come up with what some are calling a bizarre way of addressing the shortage: A new policy says that condemned prisoners or their lawyers can provide their own lethal drugs at their executions.

A representative for the Department of Corrections said that because state execution drug procedures are currently a matter of litigation, they can’t comment for this story.

So, the department’s motivations are unclear.

But there are some pretty basic legal barriers that could get in the way of any inmate or attorney who actually tried to do this, according to Cleve Wootson Jr., a reporter for The Washington Post who’s been covering this policy.

“These drugs are controlled substances,” he said. “It’s illegal for me, or you, or pretty much anybody else that’s not a doctor to have them without a prescription. And even if it were legal for us to have them, it would be illegal for an attorney to transfer possession of that drug.”

Dale Baich, an assistant federal public defender in Arizona, who works to defend death-row inmates in their final appeals, said he was stunned when he learned about the new policy. Baich was one of Wood’s attorneys and is still fighting a case against the state over the way it carries out executions.

“I would not do it,” he said. “And I don’t know of any ethical attorney who would.”

Baich said the policy is illegal and unethical. “A lawyer is fighting to protect his client’s constitutional rights, not to participate in the execution process,” he said.

According to Wootson, this is part of a larger narrative in the country: it’s getting harder to execute people in the United States.

“On one hand, there are some drug companies that have just said, ‘We’re not going to give drugs to states to kill people.’ They have an ethical stance on it,” he said. “And then there are other legal cases that are pending that say that the new drugs they’ve tried … those drugs are unconstitutional, that they’re inhumane.”

Wootson said that those who are against the death penalty have held up Wood’s execution as an example of why it is not possible to humanely execute people in America today.

Baich said that there’s only one challenge remaining to the protocol in Arizona surrounding executions: the discretion of the director of the Department of Corrections.

“Under the protocol as written, it can be changed at any moment,” he said. “And what we have learned from the past is that the drugs have been changed 18 hours before a scheduled execution. In another case, the department changed the number of drugs that would be used two days before the execution.”

In Wood’s case, the department injected 13 additional doses of the drug, Baich said. So, in this litigation, he and other attorneys are aiming to curb the director’s discretion.

To Baich, the best thing the state can do is look to the larger issue at hand: should there be a death penalty in Arizona?

“Rather than try to figure out ways to kill people and continue to experiment with different drug combinations or different methods,” Baich said, “perhaps the Legislature should have an honest debate about whether the death penalty is really needed today.”

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