Arizona Supreme Court Rejects Prosecution Attempt to Expedite Executions Based on Its Own Error on Shelf Life of Execution Drugs

The Arizona Supreme Court has rejected the efforts of Arizona prosecutors to expedite the executions of two death-row prisoners and further limit appeals judicial review of legal issues in their cases. The Arizona Attorney General’s office had sought to shorten judicial review in the cases of death-row prisoners Frank Atwood and Clarence Dixon after learning that the shelf life of the drugs it intended to use in the executions would expire before the executions could be carried out.

Arizona Attorney General Mark Brnovich (pictured) urged the state court in April 2021 to set expedited filing deadlines in advance of issuing execution warrants for Atwood and Dixon so the courts could review the prisoners’ challenges to Arizona’s lethal-injection protocol and other legal issues in their cases in the 90-day window before the pentobarbital the Arizona Department of Corrections Rehabilitation and Reentry (ADCRR) spent $1.5 million to obtain went bad. The compressed schedule was necessary, Brnovich said, for the state to obtain an execution warrant, have the drug manufactured by a compounding pharmacy, get the drug tested, and carry out an execution before the drug lost its potency.

In reliance on that representation, the Arizona Supreme Court set expedited briefing on the prosecutors’ requests to set Atwood’s execution date for September 28 and Dixon’s for October 19. However, in motions filed June 22, 2021, prosecutors admitted that the shelf life of the drugs is actually 45 days. To compensate for the mistake, the attorney general’s office asked the court to limit the time for judicial review even further so the executions could move forward. The motion said that the state is prohibited from using expired drugs by the terms of a settlement agreement with the state’s death-row prisoners entered into after the botched execution of Joseph Wood in 2014.

The change comes after lawyers for Atwood had charged in court pleadings that Arizona had misrepresented the shelf life of the compounded drug, citing medical journals and scientific experts who said compounded pentobarbital loses potency after 45 days.

“He is trying to shirk responsibility for any foul-up,” said Joe Perkovich, one of the lawyers on Atwood’s defense team. “He has blown a million and a half dollars on a drug he can’t legally use in Arizona.” Perkovich criticized the prosecutors’ attempt to shorten the time for appellate review even further, saying “[n]ot only will lawyers lose chances to respond, but the Arizona Supreme Court will have no time to consider arguments.”

Lawyers for Dixon filed a response to the attorney general’s motion on July 6, saying the prosecutors’ new proposed schedule would afford defense lawyers just four days to respond to the state’s motion to set Dixon’s execution date. Dixon’s counsel wrote: “The solution to the State’s unpreparedness is not to violate Mr. Dixon’s rights by suspending the operation of this Court’s rules, or to compromise the time the Court has to deliberate.” Dixon’s lawyers asked the court to vacate the previously announced briefing schedule or stay all briefing on the matter because the prosecutor’s previous request to establish a briefing schedule in advance “was precipitous” and because the state “still has not conducted testing to reliably determine the shelf-life of its execution drugs.”

In a statement to the media, Dixon’s lead counsel, Dale Baich, chief of the Arizona federal defender’s capital habeas unit, noted that “[t]he State of Arizona has full control over its execution drugs, and it sought the original briefing schedule based on information received from its own pharmacist. … This is not the first time Arizona has had problems with execution drugs,” Baich said.

In separate orders in the two cases, the court denied the prosecutors’ motion to modify the briefing schedule and vacated the briefing schedule that already had been set. It permitted the state to “renew its scheduling motion after specialized testing to determine a beyond-use date for compounded doses of the drug.”

The snafu was the latest in a growing list of irregularities related to Arizona’s efforts to carry out executions. In 2010 and again in 2015, Arizona attempted to illegally import drugs for use in executions. Both times, the drugs were seized by federal authorities. In 2014, the state administered 15 doses of the drug midazolam in an attempt to execute Joseph Wood. Reporters counted Wood gasping more than 640 times over the course of one hour and fifty-seven minutes before finally succumbing to the drugs.

Brnovich, who is running for U.S. Senate and 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, has repeatedly accused Governor Doug Ducey of dragging his feet in obtaining execution drugs. ADCRR then paid $1.5 million to a secret drug compounder in October 2020 to obtain 1,000 vials of compounded pentobarbital.

In April 2021, the British newspaper, The Guardian, obtained heavily redacted public records exposing the exorbitant payment. Barely a month later, The Guardian reported that ADCRR had also purchased ingredients for producing hydrogen cyanide gas, the same gas the Nazis used to murder more than a million people in concentration camps during the Holocaust.

Even before the Attorney General’s office botched its representations about the drug’s shelf life, its request to limit court review of the execution process drew fire. Perkovich described that request as “unprecedented and a radical departure” from the way execution motions had been handled since the reinstatement of capital punishment in the 1970s.

“The most grave thing that a court does is put someone to death,” Perkovich said. “This is asking the Supreme Court to be a rubber stamp for the attorney general.”