Arizona to death row inmates: Bring your own lethal drugs

By Cleve R. Wootson Jr.

The Washington Post

Joseph Wood was supposed to die about 10 minutes after his jailers released a combination of midazolam and hydromorphone into his bloodstream.

Instead, for nearly two hours, the death row inmate snorted and gasped, breathing like a “fish gulping for air.” An hour into the execution, his attorneys were on the phone with the Supreme Court, unsuccessfully pleading for an emergency stay.

Wood’s 2014 death prompted a review of execution procedures in Arizona and underscored a problem death penalty states have faced for a half-decade: It’s getting harder to put people to death in the United States.

Companies that manufacture the most common lethal injection drugs have stopped shipping them to death penalty states, distancing themselves from a practice many view as barbaric. Some medical professionals have taken a similar stance, saying their duty is to save lives, not end them.

So death penalty states have improvised, taking a closer look at firing squads and other, older execution methods. They’ve used compounded cocktails of deadly drugs or ones that are less effective, experts say. But instead of sending inmates to a peaceful end, the drugs have occasionally led to horror stories of agonizing executions that further soured public opinion.

Now Arizona has responded with a new — and some say bizarre — solution to this quandary:

Death row inmates can bring their own execution drugs.

The state’s manual for execution procedures, which was revised last month, says attorneys of death row inmates, or others acting on their behalf, can obtain pentobarbital or sodium Pentothal and give them to the state to ensure a smooth execution.

“I’m flabbergasted,” said Dale Baich, one of Wood’s attorneys, who is still embroiled in a death penalty lawsuit against the state. “I can’t comprehend why the Arizona Department of Corrections did what it did and what it was thinking.”

The department did not respond to requests to detail the rationale of its new policy or say whether it was the result of criticism following Wood’s death.

But Baich said it’s untenable to think that an attorney who spent years fighting for a client’s life would help kill him.

“What the state is doing is it’s passing on its obligation to the condemned prisoner or his lawyer,” Baich said. “If the state wants to have the death penalty, it has the duty to figure out how to do it constitutionally.”

Robert Dunham, executive director of the Death Penalty Information Center, said the new protocol raises more questions about whether states can humanely execute people.

“This protocol has a feel of desperation to it, that rather than looking for a reasonable alternative … Arizona instead is attempting to enlist the prisoner and his lawyer to do the state’s job,” he said. “It’s not the type of proposal that instills confidence in the trustworthiness of the state.”

It’s also, technically, illegal, Dunham said. Only doctors and pharmacists can obtain the deadly drugs needed for executions. Even if a lawyer could get his hands on sodium Pentothal or pentobarbital, transferring the drugs to someone else – even the state – would be a felony.

For people convicted after 1992, lethal injection is the only legal method of executing people in Arizona, which has 126 people on death row, according to the Death Penalty Information Center. The state has executed 141 people in total, although no executions are scheduled.

Wood’s was the most recent, and his execution — and other problematic, drawn-out lethal injections in Oklahoma and Ohio — have sparked criticism and launched court battles, specifically about the drug midazolam.

As The Washington Post’s Mark Berman reported, last year was the first year since 1994 that Oklahoma did not carry out an execution, a stoppage that contributed to a modern low in executions.

Lethal injections are on hold there after authorities used the wrong drug in an execution last year and then almost used the wrong drug months later, according to Berman.

Oklahoma’s most high-profile botched execution drew criticism from former president Barack Obama and the United Nations.

After midazolam was injected into Clayton Lockett, the Oklahoma inmate lived for 43 minutes — convulsing, writhing and calling out from the gurney — before ultimately dying of a heart attack.

Ziva Branstetter chronicled Lockett’s final moments in the Tulsa World:

Nine minutes after the drugs were administered, “The inmate’s body starts writhing and bucking and it looks like he’s trying to get up… . He utters another unintelligible statement. Defense Attorney Dean Sanderford is quietly crying in the observation area.”