Arizona DoC Paid $1.5 Million for Execution Drugs While Facing a Budget Crisis

At a time in which the Arizona Department of Corrections is fac­ing crit­i­cism for crum­bling infra­struc­ture, sub­stan­dard med­ical care, and under­staffing, the depart­ment has spent $1.5 mil­lion to pur­chase the lethal-injec­tion drug pen­to­bar­bi­tal from an undis­closed source. The exor­bi­tant price, experts say, is a func­tion of the ques­tion­able use of the drug for non-med­ical pur­pos­es and the secre­tive nature of the transaction.

Records obtained by The Guardian show that, in October 2020, Arizona ordered 1,000 vials of the bar­bi­tu­rate pen­to­bar­bi­tal. Each one-gram vial cost the state $1,500, for what the news­pa­per described as a ​“jaw-drop­ping” total of $1.5 mil­lion. A heav­i­ly redact­ed invoice (click to enlarge pic­ture) shows that the state ordered 4 – 8 ​“unla­beled” jars to be shipped in ​“Unmarked jars and box­es” to an Arizona loca­tion ​“to be deter­mined.” The state’s exe­cu­tion pro­to­col calls for five grams of the drug, so the vials would be enough for 200 exe­cu­tions in a state that has 119 peo­ple on death row. 

Assistant fed­er­al defend­er Dale Baich, whose office rep­re­sents numer­ous Arizona death-row pris­on­ers, issued a state­ment April 9 say­ing: ​“We are shocked to learn of the steps Arizona has tak­en to hide the facts relat­ed to its effort to car­ry out exe­cu­tions. Taxpayer mon­ey should not be spent in this man­ner with­out com­plete trans­paren­cy — cer­tain­ly not with unmarked box­es and ​‘heav­i­ly redact­ed document[s]’ … and not with the shroud of secre­cy in which Arizona has cloaked its execution processes.” 

“For the State to spend $1.5 mil­lion on exe­cu­tion drugs is even more dis­turb­ing giv­en recent reports about the bud­get cri­sis at the Department of Corrections,” Baich said. ​“Surely there is a bet­ter use for this mon­ey than car­ry­ing out executions.” 

Prashant Yadav, a lec­tur­er at Harvard med­ical school, said that states have paid as much as a 1,000% markup on exe­cu­tion drugs, com­pared to the usu­al mar­ket price of the drugs. ​“These drugs are being trad­ed in a zone of unclear reg­u­la­to­ry appa­ra­tus, and so they typ­i­cal­ly charge a high­er price,” he said. 

Deborah Denno, a pro­fes­sor at Fordham Law School, sum­ma­rized the sit­u­a­tion, say­ing, ​“States have switched from one drug to anoth­er, crossed state lines to get drugs, paid cash and failed to record the pay­ments to keep the pur­chas­es secret. All of those actions are vio­la­tions of state or fed­er­al laws, and all of them have end­ed up jack­ing up the price of the drugs.” Robert Dunham, exec­u­tive direc­tor of the Death Penalty Information Center, said, ​“Any time a gov­ern­ment retreats into secre­cy you know there’s a prob­lem. If you don’t have account­abil­i­ty then it opens the door to favoritism, to graft and to deal­ing with a lot of shady char­ac­ters who don’t have the public’s inter­est in mind.” 

The pur­chase comes as Arizona offi­cials seek to restart exe­cu­tions after a near­ly sev­en-year hia­tus fol­low­ing the botched lethal-injec­tion exe­cu­tion of Joseph Wood. Although the coro­n­avirus remains uncon­trolled in the Arizona pris­ons, state Attorney General Mark Brnovich has vowed to ​“do every­thing I can” to ensure that the 21 Arizona death-row pris­on­ers who have exhaust­ed their state and fed­er­al post-con­vic­tion appeals are exe­cut­ed ​“before I leave office” in January 2023. In an April 12 edi­to­r­i­al, the Los Angeles Times crit­i­cized Brnovich for attempt­ing to set exe­cu­tion dates ​“dic­tat­ed by the inter­ests of pol­i­tics, not the inter­ests of justice.” 

This is the third time Arizona’s process for obtain­ing lethal-injec­tion drugs has come under scruti­ny. The state twice before attempt­ed to ille­gal­ly import exe­cu­tion drugs from over­seas sup­pli­ers with murky backgrounds. 

The Guardian’s inves­ti­ga­tion also revealed large secre­tive expen­di­tures for exe­cu­tion drugs by Tennessee and Missouri. Between 2017 and 2020, the paper reports, Tennessee spent $190,000 for the three drugs it used in exe­cu­tions. Two peo­ple were exe­cut­ed by lethal injec­tion dur­ing that peri­od, for a $95,000 cost per exe­cu­tion. (An addi­tion­al five peo­ple were exe­cut­ed by elec­tro­cu­tion in Tennessee from 2017 to 2020.) Missouri spent more than $160,000 on lethal-injec­tion drugs from 2015 to 2020, and exe­cut­ed ten peo­ple in that peri­od, for an aver­age cost of $16,000 per exe­cu­tion for the drugs alone. 

As chron­i­cled in DPIC’s November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States, both Missouri and Arizona have engaged in ille­gal activ­i­ty to obtain exe­cu­tion drugs in the past. In 2010, Arizona pur­chased sodi­um thiopen­tal, an anes­thet­ic, from Dream Pharma, a phar­ma­ceu­ti­cal dis­trib­u­tor based in the back of a London dri­ving school. In 2011, pri­or to the state’s sched­uled exe­cu­tion of Donald Beatty, the Department of Justice told Arizona not to use the drug because it had been import­ed ille­gal­ly. In 2015, Arizona and Texas both attempt­ed to pur­chase sodi­um thiopen­tal from Harris Pharma, an Indian phar­ma­ceu­ti­cal sup­pli­er with a trou­bling his­to­ry that includ­ed lying to a drug man­u­fac­tur­er about the intend­ed pur­pose of a drug it lat­er sold to Nebraska for use in exe­cu­tions. The U.S. Food and Drug Administration (FDA) halt­ed the ship­ments to Arizona and Texas, and the drugs expired while the states were still suing to obtain them from the FDA. 

Missouri obtained lethal-injec­tion drugs ille­gal­ly from an Oklahoma phar­ma­cy, The Apothecary Shoppe, that was not licensed to prac­tice in the state. To hide the state’s busi­ness with the phar­ma­cy, a Missouri cor­rec­tions offi­cial trav­eled to Oklahoma at night with an enve­lope con­tain­ing $11,000 in cash to pur­chase the drugs. Later inves­ti­ga­tions by BuzzFeed News found that The Apothecary Shoppe had admit­ted to near­ly 1,900 vio­la­tions of state phar­ma­cy reg­u­la­tions. Another phar­ma­cy Missouri used to sup­ply exe­cu­tion drugs had been deemed ​“high risk” by the FDA because of numer­ous safety violations. 

States have engaged in these ille­gal prac­tices because major phar­ma­ceu­ti­cal man­u­fac­tur­ers have refused to pro­vide their prod­ucts for use in exe­cu­tions, say­ing that their mis­sion is to save and improve lives, not end them. 

Hannah Cox, nation­al man­ag­er of Conservatives Concerned About the Death Penalty, said that the spend­ing of large sums of tax­pay­er mon­ey on exe­cu­tions by Arizona, Missouri, and Tennessee vio­lates con­ser­v­a­tive prin­ci­ples. ​“You can’t run around and say you are a fis­cal con­ser­v­a­tive Republican, or that you are pro-lim­it­ed gov­ern­ment and for the free mar­ket, and then behave like this,” Cox said. ​“It’s com­plete­ly con­tra­dic­to­ry to every conservative value.”