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.”