Arizona Seeks to Expedite Executions, With Less Judicial Oversight, Because of Its Own Error on Shelf Life of Execution Drugs

The Arizona Attorney General’s office has asked the Arizona Supreme Court to cur­tail the time allot­ted to judi­cial review of legal issues in the cas­es of two death-row pris­on­ers pros­e­cu­tors want to exe­cute, say­ing that the drugs they intend to use in the exe­cu­tions remain potent half as long as it had previously represented.

Arizona Attorney General Mark Brnovich (pic­tured) told the court in April 2021 that it should set expe­dit­ed fil­ing dead­lines in advance of issu­ing exe­cu­tion war­rants for death-row pris­on­ers Frank Atwood and Clarence Dixon so the courts could review chal­lenges to Arizona’s lethal-injec­tion pro­to­col and oth­er legal issues in the prisoner’s 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 pros­e­cu­tors’ requests to set Atwood’s exe­cu­tion date for September 28 and Dixon’s for October 19. In motions filed June 22, 2021, how­ev­er, state pros­e­cu­tors said the shelf life of the drugs is actu­al­ly 45 days and 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. 

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.”